Document Outline

There is, perhaps, no other

area of law where Cicero’s saying (well-known to all lovers of
dictionaries of quotations) is more applicable than human
rights. In the name of humanity, the Empire of Good will
bomb Belgrade, Baghdad or Tripoli, foment colour
revolutions in former Soviet states, set the Maghreb and the
Near East ablaze, and seek to universally impose its
fundamentalist conception of democracy. Squads of
businessmen dispatched by corporations will follow the
ideological bulldozers driven by the evangelists. How many
times have popular revolutions been hijacked by social
benefactors chiefly interested in serving the interests of the
people behind them?

Already in the late 1970s — with the onset of the second

wave of globalisation — the philosopher Marcel Gauchet
observed how the defence of human rights had been turned
into a substitution policy.

This metamorphosis has

continued: from politics, one has moved on to religion, so
much so that today — as Alain de Benoist observes in the
present volume — ‘it is as unseemly, blasphemous and
shocking to criticise the ideology of human rights as it once
was to doubt the existence of God’. In this context, works
critical of human rights — meaning works written in a critical
spirit — can only be beneficial. With the eyes of a lynx, at the
beginning of this transformation, Michel Villey had set out
precisely to provide such a critique.

He caused quite a bit

of consternation and his work is now read neither in law
faculties nor anywhere else. Is Alain de Benoist’s work
destined to meet the same fate? We bet it won’t. Still, the
sanctimonious are gathered in their palaces: the Venetian
palaces housing the mighty Venice Commission. These
constitutional engineers are developing principles of political
justice to be adopted by all states seeking admission into one
of the many European organisations, starting from the
European Council and European Union. In the Palace of
Nations in Geneva, away from the cries of the people, experts
are setting down universally applicable human rights laws and
the ways in which these are to be applied. In the Palace of the
Rights of Man,

in Strasbourg, great inscrutable judges,

enveloped in long silk robes, unflinchingly issue regulatory
judgements reversing previous laws, overruling parliaments
and bypassing the constitutions of sovereign states. It is
difficult to make this criticism heard because the Church of
Human Rights is so powerful that it imposes as self-evident
doctrines which rest on nothing but sheer assumptions, and
which often go against the most ancient laws in peoples’
traditions.

It is upon these assumptions that Alain de Benoist focuses,

investigating the origins, basis, universality and influence of
human rights. In doing so, he undermines the very
foundations of human rights and their underlying claims.

1. Human rights are often presented as being timeless rights.
Take the Preamble to the Declaration of the Rights of Man
and of the Citizen of 1789:

The representatives of the French people, constituted in the
National Assembly, considering that ignorance, forgetfulness or
contempt of the rights of man are the only causes of public
misfortunes and the corruption of governments, have resolved to
set forth, in a solemn declaration, natural rights, inalienable and
sacred to man.

Forgetfulness or contempt, according to this declaratory
rhetoric, justifies the need to reinstate rights which nonetheless
already exist. It is for this reason that the first French
Revolutionaries were so keen to draw a distinction between
the Declaration of 1789 on the one hand and the Constitution
of 1791 on the other. The former reinstates what is already in
existence, whereas the latter establishes something which
previously did not exist; the former invokes an alleged
tradition, the latter forges institutions for the new man. But
clearly this is a largely rhetorical distinction. The antiquity of
the rights invoked serves to justify the promotion of the new
man, Homo oeconomicus,

whose actions are entirely

calculated to match the algorithm of his own interests and
whose behaviour can be standardised.

Antiquity, however, ignored the idea of fundamental rights.

Neither the Greeks nor the Romans believed there could be
such a thing as what we call human rights, which are
subjective rights attached to all human individuals as subjects.
For human rights to become possible, the notion of the
individual had to be invented, and Norbert Elias has shown
that there was no equivalent to it in Antiquity.

Alain de

Benoist stresses the important role which the Christian religion

played in the birth of the idea of the individual. This is not to
say that individuals did not exist before Christianity (to think
so would be absurd); simply, individuals were not
acknowledged as such. For the category of the individual to
make its appearance — the prerequisite for the birth of human
rights — it was necessary to attribute a unique value to each
human being, a soul which would connect it to God. Starting
from the individual, it then became possible to think in terms
of subjects; starting from subjects, in terms of subjective
rights; and starting from subjective rights, in terms of human
rights. Naturally, this was no linear progression; yet it
indicates an axis which ultimately runs from St. Augustine to
Locke and Kant. From the Sixteenth century onwards, it has
contributed to the development of modern natural law, which
has found its chief representatives in Grotius,

Pufendorf,

Locke

and Wolff

and has exercised a considerable

influence upon the thought of both the Founding Fathers of
the United States and the French Revolutionaries.

The anthropological revolution which made it possible to

think of man as an individual immediately went hand-in-hand
with a juridical revolution which imposed the idea that
individuals are equal before the law, i.e., that they possess
inalienable subjective rights. Differences among men thus
came to be regarded as something merely contingent,
secondary and social, and hence commonly perceived as
unjust. So much so that, as René Girard has illustrated, it is
equality — through the mimetic rivalry it engenders — and
not mutual difference which is the major cause of conflict

among men.

Alain de Benoist has written that a triple

revolution has shaped modernity: ‘On the one hand, the
notion of will is substituted for the notion of order. On the
other hand, the individual has moved to the centre and the law
has become his attribute. Finally, the law is identified with
“justice”, the latter having henceforth an essentially moral
complexion.’ This triple revolution clearly shows that human
rights are far from eternal and that their alleged universality is
merely the expression of an ideology, which is to say of a
system for representing the world and man’s place in the
world which has being developing and incessantly changing
since late Antiquity. In its modern form, the anthropology of
subjects is a recent invention.

It is based on an abstract

conception of the individual, reduced to certain constitutive
elements whose combinations standardise our actions.

2. Human rights, however, are presented not in terms of their
historicity — for this would weaken their authority by
relativising them — but through a philosophical tale of their
foundations. It is always very important to clearly distinguish
the historical question of origins from the philosophical one of
foundations. Alain de Benoist must be credited for having
drawn a perfect distinction between the two issues.

In its basic version, the question of the foundations of

human rights may be formulated starting from social contract
theories. Indeed, explanations not of the origins of society but
of its foundations were first developed within the school of
modern natural law, a current of thought which began with
Grotius’ publication of the treatise The Rights of War and

Peace

[15]

in 1625 and which continued into the Eighteenth

century.

The

various

social

contract

theories

vary

significantly, to the point they are mutually irreducible. Still,
they follow a line of thought that may be summed up as
follows: free individuals exist in the state of nature. In order
for them to defend their own freedom and property, they soon
realised they needed a common power which could secure
their fundamental rights. The state, which is to say public
power, results from an agreement among free individuals who
have regrouped to form an association. The political
constitution which serves as a law for them is the contract
which brings them together. All the elements behind the
theory of human rights are already present in this
mythological account: the individual in the state of nature is a
Homo oeconomicus, a free individual and property owner
concerned with defending his own interests. Through rational
planning, he reaches the conclusion that the establishment of
the state is necessary if he is to defend his own interests. As
individuals are essentially rational, a collective choice can only
lead to a contract. Case made. The same reasoning may be
applied at the level of states to justify the establishment of an
international society.

This line of reasoning, sprung from Seventeenth-century

philosophical treatises, has not yet grown outdated. It is still to
be found at the very heart of the most sophisticated
contemporary theories. John Rawls’ A Theory of Justice,

which is often regarded as the greatest work of political
philosophy of the Twentieth century, is nothing but an

elaborate reformulation of social contract theories. Some of
the major interpretations of globalisation, such as Francis
Fukuyama’s theory about the end of history

or James

Rosenau’s idea of global governance,

are based on the

same assumptions. Social contract theory is not an old theory
belonging to the history of political philosophy, but rather
something which is constantly being updated and expanded,
and which serves as a foundation for theories of international
law. The recent theory about ‘the responsibility to protect’
which has been applied by the United Nations Security
Council in the Ivory Coast and in Libya ultimately rests on
Locke’s idea that rulers only derive their legitimacy from the
protection they afford the freedom and property of
individuals, thus losing all legitimacy the moment they oppose
any insurrection in the name of freedom. When the social
contract is severed, the NATO air forces will intervene to
restore it.

3. The above observations lead us to another question, which
is also raised by Alain de Benoist in his work, namely the
issue of the universality of human rights. Human rights are
spreading globally. Does this mean they are universal? A
distinction must clearly be drawn between the two questions.
The first is a practical matter, the latter a juridical one. Still, the
two questions are interrelated. The idea that human rights are
universal will lead people to search for ways of extending
their

applicability. The

just

war

is the unavoidable

consequence of affirming the universality of human rights.

The alleged universality of human rights is bound to run up

against the diversity of cultures and values. One civilisation
will expose deformed newborns, while another will euthanise
the elderly. The Caribs would eat the flesh of their slain
enemies in order to assimilate their virtues, while the Incas
used to sacrifice a Corn Queen in order to sprinkle their fields
with fresh blood. Many populations of sub-Saharan Africa
practice female circumcision; Jews and Muslims practice male
circumcision. Dying for one’s country after killing the highest
possible number of enemies was still held to be an honour
only fifty years ago, while having an abortion was seen as a
crime against the nation. Slavery as practiced in ancient Rome
and Athens has become the very symbol of degeneration, and
yet purchasing a child conceived in the womb of a woman
who is renting her uterus is held to be a right in some modern
Western countries. A thousand other examples could be cited
to illustrate the following point: ‘Three degrees of latitude
overthrow jurisprudence. A meridian determines the truth.
Law has its periods; right has its epochs; Saturn’s entry into
the house of the Lion marks the origin of a given crime. It is
an odd kind of justice to have a river for its boundary. Tru th
lies on this side of the Pyrenees, error on the other.’

Under these conditions, what credibility could the idea of
universal human rights have?

A Universal Declaration of Human Rights was adopted

through a resolution of the General Assembly of the United
Nations on 10 December 1948 in the Palais de Chaillot (yet
another palace!), but its applicability remained limited, as is
shown

by the multiplication of later declarations: the

American Declaration of the Rights and Duties of Man,
adopted in Bogotá in 1948, the Convention for the Protection
of Human Rights and Fundamental Freedoms (known as the
European Convention of Human Rights) signed in Strasbourg
in 1950, the African Charter on Human and Peoples’ Rights
adopted in Nairobi in 1981, the Universal Islamic Declaration
of Human Rights proclaimed in Paris in 1981, the Arab
Charter on Human Rights signed in 1994 and finally adopted
in Tunis in 2004, the European Charter on Fundamental
Rights adopted in Nice in 2000... Why multiply the
declarations if they are all alike? The truth is that, in fact, they
are not alike (for some stress rights and others add duties;
some contain only fundamental rights, while others also
include social or economic rights). Nor do these declarations
all stem from the same principles.

Take the following example: in its Preamble, the Universal

Islamic Declaration of Human Rights contains a resounding
statement:

Therefore we, as Muslims who believe

a) in God, the Beneficent and Merciful, the Creator, the

Sustainer, the Sovereign, the sole Guide of mankind and the Source
of all Law;

b) in the Vicegerency (Khilafah) of man who has been created to

fulfil the Will of God on earth;

c) in the wisdom of Divine guidance brought by the Prophets,

whose mission found its culmination in the final Divine message
that was conveyed by the Prophet Muhammad (Peace be upon him)
to all mankind.

It does not take a great scholar to grasp tha t the universality
referred to here has little to do with the universality of human
rights as understood by the European Convention of Human
Rights or the European Charter on Fundamental Rights, both
of which prudently avoid all references to God and assume
man is of one kind.

These few indications are enough to reveal how in the West,

in Europe, when talk is made of the universality of human
rights, it is real universality — so to speak — which is being
referred to, namely that of secularised, individualist societies
following a market economy and mass consumption. It is this
universality alone which is being offered as a model to the rest
of humanity. Besides, it would be easy to show how all the
exotic declarations, charters and conventions on human rights
are more the product of an incomplete acculturation process, a
form of collateral damage caused by the colonisation of
consciences, than of any spontaneous drive towards
fundamental rights on the part of indigenous elites!

The Western notion of individual rights is far from common

to everyone, including those who adopt declarations or
charters regarding fundamental rights. As Alain de Benoist
well illustrates, the European conception of the individual is
simply incomprehensible to most non-Western cultures, which
rest on completely different holistic or communitarian
foundations.

4. Much evidence suggests that the spread of human rights

is taking an increasingly authoritarian turn. Alain de Benoist

begins by focusing on the problem of the emergence of the
idea of dignity as a category central to human rights. Ignored
i n the first declarations from the late Eighteenth century, the
dignity of the human person entered the world of human
rights after 1945, when it began to be used in the sense of that
which distinguishes man — something above the sovereignty
of both individuals and peoples. The introduction of the idea
of dignity in relation to human rights has led to a substantialist
turn. Human rights are not merely subjective but also
substantial, meaning they are rights which neither individuals
nor peoples can forgo, as they represent the very essence of
man.

A fundamentalist conception of human rights has thus

emerged which justifies any defence of these rights against the
very will of individuals or peoples — defence by means of
force.

Through various bodies, the European Council is playing a

leading role in spreading this conception. Let us recall here, by
way of example, the action of the Venice Commission and of
the European Court of Human Rights.

The

Venice

Commission

(officially, the

European

Commission for Democracy through Law) is an advisory
body of the Council of Europe specialising in constitutional
matters.

It was very active in the 1990s, when it lent

advice to the rulers of central and eastern European states by
providing them with good constitutional principles. The
Commission has played an important role in promoting what

is sometimes still referred to as ‘democratic conditionality’. Its
original aim was to help the former Soviet states to change
their constitutions and fundamental laws so that they would be
in conformity with European norms by respecting the
standards of the European Council — namely, democracy,
human rights and the rule of law. Later, the reputation
acquired by the Venice Commission enabled it to extend its
influence beyond Europe. It is now particularly active in
Africa and the Middle East.

Parallel to this, we are witnessing a juridically remarkable

development of the European Court of Human Rights, which
is going further and further in its definition of what constitutes
real democracy. The Court is setting the main standards for
democracy and, in doing so, increasingly affecting the
constitutional law of European states, to the point of breaching
their independence.

Democracy is literally in the grip of human rights. This form

of democracy is called constitutional. Judge Aharon Barak, the
former President of the Israeli Supreme Court, summed it up
in a rather striking way:

Everyone agrees that a democracy requires the rule of the people,
which is usually effectuated through electing representatives in a
legislative body. Therefore, frequent elections are necessary to
k e e p these representatives accountable to their constituents…
Democracy is not satisfied merely by abiding by proper elections
and legislative supremacy. Democracy has its own internal
morality based on the dignity and equality of all human beings.
Thus, in addition to formal requirements (elections and the rule of

the majority), there are also substantive requirements. These are
reflected in the supremacy of such underlying democratic values
and principles as separation of powers, the rule of law, and
independence of the judiciary. They are based on such fundamental
values as tolerance, good faith, justice, reasonableness, and public
order. Above all, democracy cannot exist wi thout the protection of
human rights — rights so essential tha t they must be insulated
from the power of the majority… Democracy is not just the law of
rules and legislative supremacy; it is a multidimensional concept.
It requires recognition of both the power of the majority and the
limitations on that power. It is based on legislative supremacy and
on the supremacy of values, principles, and human rights.

This extract from a work by Judge Barak reflects a very
common conception of democracy, which is found among
several authors: the Frenchman Dominique Rousseau,

the

German Peter Häberle,

and the American Stephen

Breyer

are only some of the zealous defenders of this

substantialist conception of democracy, which treats the
people chiefly as an ideal and an abstract principle rather than
a tangible community brought together by shared values,
views and practices.

Alain de Benoist’s work offers a particularly enlightening

critique of this concept of substantialist or fundamentalist
democracy. It will serve as a starting point for thinking
beyond human rights through a return to political categories.
Human rights are not a policy and a policy of human rights is
the very negation of politics. Alain de Benoist is fully in line
with Carl Schmitt’s

and Julien Freund’s

theories

about the essence of politics. Indeed, he may be regarded as

their real heir.

Eric Maulin,

Professor of Public Law at Strasbourg University

Director of the Institut des Hautes Études Européennes

June 2011

(Translated into English by Sergio Knipe)

Latin: ‘the extreme law is the greatest injustice’. From Cicero, ‘On

Duties’, book one, chapter 33.-Ed.

Marcel Gauchet, ‘Les droits de l’homme ne sont pas une politique’,

in Le Débat, no. 3, July-August 1980, pp. 2-21; reprinted in La
démocratie contre elle-me

̂me (Paris: Gallimard, 2002).

Michel Villey, Le Droit et les Droits de l’homme (Paris: Presses

universitaires de France [PUF], 1983).

Otherwise known as the European Court of Human Rights.-Ed.

The Declaration of the Rights of Man and of the Citizen was adopted

by the French Constituent Assembly during the French Revolution, in
August 1789.-Ed.

Latin: ‘economic man’.-Ed.

Norbert Elias, The Society of Individuals (Oxford: Basil Blackwell,

1991).

Hugo Grotius (1583-1645) was a Dutch jurist who is considered one

of the founders of international law based upon the principles of
natural law, in particular as it pertains to the conditions for the
justifications of war.-Ed.

Samuel von Pufendorf (1632-1694) was a German political

philosopher and statesman. He asserted that the authority of the state
depends for its power upon the combined wills of the individuals that
comprise it.-Ed.

John Locke (1632-1704) was an English philosopher of the

Enlightenment who is regarded as the most important theorist of
liberalism, as his works were extremely important to the
development of modern democracy.-Ed.

Christian Wolff (1679-1754) was a German philosopher who

viewed human society in the same way as the division between body
and soul, in which the soul is the leadership of the state and the body
represents its subjects, which comprise the majority of the populace.-
Ed.

Georg Jellinek, The Declaration of the Rights of Man and of

Citizens: A Contribution to Modern Constitutional History (Wesport:
Hyperion Press, 1979).

René Girard, Violence and the Sacred (Baltimore: The Johns

Hopkins University Press, 1977).

Regarding this matter, we shall refer to the overview provided by J.

B. Schneewind, The Invention of Autonomy: A History of Modern
Moral Philosophy (Cambridge: Cambridge University Press, 1998).

Grotius on the Rights of War and Peace: An Abridged Translation

(Clark: The Lawbook Exchange, 2009).

John Rawls, A Theory of Justice (Cambridge, MA: Belknap Press,

1971).

Francis Fukuyama, The End of History and the Last Man (New

York: Maxwell Macmillan, 1992).

James Rosenau, Turbulence in World Politics: A Theory of Change

and Continuity (Princeton: Princeton University Press, 1990).

Blaise Pascal, Pensées and Other Writings (Oxford: Oxford

World’s Classics, 1995), § 294, p. 23. Montaigne had already written:
‘What truth is it that is bounded by these mountains and that is
falsehood in the world beyond them?’ in Apology for Raymond
Sebond (Indianapolis: Hackett, 2003), p. 140.

Full text available at the Al-Hewar Center Web site

(www.alhewar.com/ISLAMDECL.html).-Ed.

The European Commission for Democracy through Law, better

known today as the Venice Commission, was founded in Strasbourg
some twenty years ago — on 10 May 1990 — by the 18 member
states of the European Council: Austria, Belgium, Cyprus, Denmark,
Finland, France, Greece, Ireland, Italy, Luxembourg, Malta, Norway,
Portugal, San Marino, Spain, Sweden, Switzerland and Turkey.

This is a phenomenon which has been studied in detail, yet without

any critical spirit, by Florence Jacquemot in Le standard européen de
société démocratique (Montpellier: Université Montpellier I, 2006),
and more recently by Yannick Lécuyer, L’européanisation des
standards démocratique (Rennes: Presses de l’Université de Rennes,
2011).

Aharon Barak, The Judge in a Democracy (Princeton: Princeton

University Press, 2006), pp. 27-33.

Dominique Rousseau, Sur le conseil constitutionnel: La doctrine

Badinter et la démocratie (Paris: Descartes & Cie, 1997); Dominique
Rousseau (ed.), La démocratie continue (Paris: LGDJ, 1995).

Peter Häberle, L’État constitutionnel (Paris: Economica, 2004).

Stephen Breyer, Active Liberty: Interpreting Our Democratic

Constitution(New York: Alfred A. Knopf, 2006).

Carl Schmitt (1888-1985) was an important German jurist who

wrote about political science, geopolitics and constitutional law. He
was part of the Conservative Revolutionary movement of the Weimar
era. He also briefly supported the National Socialists at the beginning
of their regime, although they later turned against him. He remains
highly influential in the fields of law and philosophy.-Ed.

Julien Freund (1921-1993) was a student of Raymond Aron and

Carl Schmitt. During the Second World War, he was a member of the
French Resistance movement. After the war he became a professor of
sociology at the University of Strasbourg. In 1980, in protest against
the French educational system and its methods of teaching political
science, he decided to retire. He was also a contributor to New Right
publications in both Germany and France.-Ed.

INTRODUCTION

One sometimes wonders what Europe has brought to the
world, what particularly characterises it. The best reply is
perhaps this: the notion of objectivity. Everything else flows
from this: the idea of the individual and of the freedom of the
individual, the common good insofar as it is distinguished
from particular interests, justice as the search for equity (that is
to say, the opposite of vengeance), the ethics of science and
the respect for empirical data, philosophical thought insofar as
it is emancipated from belief and conserves the power of the
thinker to think of the world and to question truth by himself,
the spirit of restraint and the possibility of self-criticism, the
capacity for dialogue, and even the notion of truth.

Universalism is a corruption of objectivity. Whereas

objectivity is achieved from particular things, universalism
claims to define particularity from an abstract notion posed
arbitrarily. Instead of deducing conscience from being, it
proceeds in an opposite direction. Universalism does not
consist in treating things objectively but from an overarching
abstraction from which a knowledge of the nature of things is
supposed to follow. It represents the symmetrical opposite of
the error of the metaphysics of subjectivity, which reduces the
good to that which is good for me or good for us, the true to
the judgment of one’s own conscience or to the personal. The
European tradition has always affirmed man’s necessity to
struggle against his immediate subjectivity. The entire history
of modernity, says Heidegger, is a history of the unravelling

of the metaphysics of subjectivity.

Subjectivity leads necessarily to relativism (everything is

valid), reaching in this way the egalitarian conclusion of
universalism (all are important). Relativism cannot be
surmounted except by the arbitration of one’s self (or of our
selves): my point of view should prevail for the sole reason
that it is mine (or that it is ours). The notions of justice and of
the common good are destroyed in one blow.

The ideology of human rights combines these two errors. It

is universalist insofar as it wishes to impose itself everywhere
without consideration for relationships, traditions and
contexts. It is subjectivist insofar as it defines rights as the
subjective attributes of a single individual.

‘The enthronement of human rights’, writes Marcel

Gauchet, ‘is surely the major ideological and political fact of
the last twenty years’.

Human rights, he adds, have become

‘the ideological centre of gravity’ of everything that we
participate in at present. They are on the verge of replacing, in
a hegemonic manner, all sorts of political and social
discourses which formerly were articulated from the point of
view of notions that are today worn out or discredited
(tradition, nation, progress, revolution), as well as of
becoming the sole compass of a disoriented epoch, and of
supplying a minimal morality to a world in disarray. They are
the ‘moral horizon of our time’, says Robert Badinter.

They should become the ‘foundation of all societies’, adds
Kofi Annan.

They contain ‘in essence the concept of a true

world government’, declares Jean Daniel.

They are even more than that. Based on propositions

declared to be ‘evident’ (‘we hold these truths to be self-
evident’ can already be found in the American Declaration of
Independence of July 1776), they present themselves as a new
Ten Commandments. As a new foundation of human order,
they seem to have a sacred character. Human rights have thus
been able to be defined as the ‘creed of humanity’ (Nadine
Gordimer),

and as a ‘worldwide secular religion’ (Elie

Wiesel).

They are, writes Régis Debray, ‘the last, to date, of

our civil religions, the soul of a soulless world’.

One proof of this is its dogmatic character: it cannot be

debated. That is why it seems today as unsuitable, as
blasphemous, as scandalous to criticise the ideology of human
rights as it was earlier to doubt the existence of God. Like
every religion, the discussion of human rights seeks to pass
off its dogmas as so absolute that one could not discuss them
without being extremely stupid, dishonest or wicked. By
presenting human rights as ‘human’ rights, as ‘universal’
rights, one necessarily withdraws them from criticism — that
is to say from the right to question them — and, at the same
time, one implicitly places their opponents beyond the pale of
humanity, since one cannot fight someone who speaks in the
name of humanity while remaining human oneself. Finally,
just as, the believers once thought they had the duty to
convert, by all means, ‘infidels’ and miscreants, the adherents
of the credo of human rights consider themselves as
legitimately invested with the mission of imposing these

principles on the whole world. Theoretically founded on a
principle of tolerance, the ideology of human rights thus
reveals itself to be the bearer of the most extreme intolerance,
of the most absolute rejection. The Declarations of Rights are
not so much declarations of love as declarations of war.

But today the discussion of human rights does not just have

as its goal the supply of a substitute ideology after the collapse
of the ‘grand narratives’. By seeking to impose a particular
moral norm on all peoples, it aims at giving the West a good
conscience once again by allowing it to install itself once more
as a model and to denounce as ‘barbarian’ those who refuse
this model. In history ‘rights’ have only too often been that
which the masters of the dominant ideology had decided to
define in this way. Associated with the expansion of markets,
the discussion of human rights constitutes the ideological
armour of globalisation. It is above all an instrument of
domination, and should be regarded as such.

Men should be able to fight everywhere against tyranny and

oppression. To contest the ideology of human rights is thus
evidently not to plead for despotism, it is rather to contest that
this ideology is the best means of remedying it. It is to
question oneself concerning the validity of the foundations of
this theory, on the nomological status of these rights, and on
the possibilities of manipulation to which they can be
subjected. It is thus to propose another solution.

Freedom is a cardinal virtue. It is the very essence of truth.

That is why it should be removed from the rut of universalism

and subjectivity. That human rights are proclaimed forcefully
in an increasingly dehumanised society, where men
themselves tend to become objects, and where the
commercialisation of social relationships creates everywhere
new phenomena of alienation, is probably not an accident.
There are many ways of demonstrating respect and solidarity
to men. The question of freedoms cannot be resolved in terms
of law or of morality. It is above all a political question. It
should be resolved politically.

La démocratie contre elle-me

̂me (Paris: Gallimard, 2002), p. 326.

Robert Badinter (b. 1928) is a lawyer and a long-time politician of

the Socialist Party in France who is best-known for his opposition to
the death penalty, which was repealed in 1981. De Benoist is
referring to Badinter’s speech at the 50th anniversary ceremony to
mark the signing of the Universal Declaration of Human Rights,
which was adopted by the United Nations in 1948. Badinter stated,
‘Here is a text which, even more than when it was conceived, marks
the moral horizon of our times.’-Ed.

Kofi Annan (b. 1938) was Secretary General of the United Nations

from 1997 until 2006.-Ed.

Jean Daniel (b. 1920) is a French-Jewish journalist and writer known

for his liberal humanist positions.-Ed.

Nadine Gordimer (b. 1923) is a Jewish South African writer who

was known for her involvement in the anti-apartheid movement. She
won the Nobel Prize for Literature in 1991. In The Universal
Declaration of Human Rights: Fifty Years and Beyond (Amityville:
Baywood, 1999), p. viii, she wrote that it ‘is, and shall remain, the
essential document, the touchstone, the creed of humanity that surely

sums up all other creeds directing human behavior, if we are to
occupy this world together now and in the Twenty-first century.’-Ed.

Elie Wiesel (b. 1928) is a Romanian-Jewish Holocaust survivor who

is well-known for his books describing the event. In The Universal
Declaration of Human Rights, p. 3, he wrote, ‘The defense of human
rights has, in the last fifty years, become a kind of worldwide secular
religion.’-Ed.

Que vive la République (Paris: Odile Jacob, 1989), p. 173. (Jules

Régis Debray [b. 1940] is a prominent French Marxist intellectual.
He is famous for having been a part of Che Guevara’s ill-fated
guerrilla insurgency in Bolivia in 1967.-Ed.)

1. ARE HUMAN RIGHTS A PART OF THE

LAW?

The ideology of rights classically defines ‘human rights’ as
the innate rights, inherent in human nature, that are borne by
every individual since the time of the ‘state of nature’, that is
to say, before the development of all social relations. Being
subjective attributes of every man insofar as he is a man,
relating to an isolated individual, who is pre-political and pre-
social, these rights are therefore necessarily individual in
nature: they are those which the individual can implement
according to his will alone; they constitute the privileges
which the agent that possesses them can enjoy. They are a
prerogative of all human beings, supposed to be independent
of space and time, valid at all times and in all places
independently of personal conditions, political situations and
socio-historical attributes, they are besides universal and
inalienable by definition. No state can create them, grant or
abrogate them, since they pre-date, and are superior to, every
social and political form. The public powers can only
recognise them by making sure that they guarantee and respect
them. The general idea which is deduced from this definition
is that man is not reducible to his social being, and that his true
self is elsewhere.

Human rights are ahistorical, but they nevertheless have a

history. Besides, the expression jura hominum

[1]

besides is

not older than 1537.

The first question that one should

pose consists, therefore, in knowing according to what

procedure human rights were able to be recognised and then
‘declared’, and to what extent their legal formulation
represents — or does not — a solution that represents a
continuity in relation to the traditional forms of the law.

Originally, law was not at all defined as a collection of rules

and norms of conduct (which derive from morality), but as a
discipline aiming at determining the best means of instituting
equity within a relationship. For the Greeks, justice in the legal
sense of the term represented good proportion, the equitable
proportion between distributed possessions and duties. The
jus

[3]

of Classical Roman law aimed equally at determining

the ‘good distribution’ that should exist between men, the just
sh ar e that should be attributed to everyone: suum cuique
tribuere.

Cicero

thus says, in relation to civil law, that

‘its end is to maintain among citizens, in the distribution of
goods and in legal cases, a just proportion resting on the laws
and customs’.

The jurist is one who determines this just

distribution. Being constituted of the equity and rectitude of
relationships between persons, justice aims from that at the
harmony of the group. The privileged domain of the law is
therefore that of distributive justice, that is to say, of a justice
placing the citizens in order among themselves and in relation
to the common good. Human nature serves as a reference but
is not apprehended according to conscience, independently of
all social relations. It is in itself only an element of a
hierarchical Nature which assigns to it its place and function.

In this conception of Classical natural law, there is no place

either for universalism, or for subjectivism, or for

contractualism. A subjective law, a law which would be an
attribute of the person outside all social life, is unthinkable.
‘Rights’ are only distributions which should go to such or
such, the result of a distribution ordered by the judge. The law
thus never concerns itself with an isolated being, an individual
considered as such. It does not concern itself, either, with man
taken in his generality: generic man remains an empty
category. ‘The Greeks’, observes Jean-Pierre Vernant, ‘are
totally deprived of this idea of a singular individual, the bearer
of universal and inalienable rights, which seem to be taken for
granted by us’

— something that did not prevent them

from inventing democracy and to honour the notion of
freedom more than others.

The first rupture appeared with Christianity. The Christian

religion proclaims, in effect, the unique value of every human
being by positing him as a value in himself. Insofar as he
possesses a soul which puts him in a direct relationship with
God, man becomes the bearer of an absolute value, that is to
say, of a value which cannot be confused either with his
personal qualities or with his belonging to a particular
collective group. Concomitantly, Christianity gives a purely
individual definition of freedom, which it makes the faculty of
choosing, for a person endowed with reason, in accordance
with morality, and between the means that lead to an end
(Radix libertatis sicut subjectum est voluntas, sed sicut causa
est ratio,

as Thomas Aquinas

would say). This accent

placed on free will implicitly contains the idea that man can
free himself of his natural qualities, that he can effect his

choices on the basis of reason alone and thus make the world
accord to his will. At the start, this will is posited as a power
of consent. The superior life proceeds from a transformation
of the will that is the work of grace.

By these major anthropological innovations, Christianity

digs a ditch between the origin of man (God) and his temporal
existence. It withdraws from the relative existence of the
human being the ontological anchoring that is now reserved
for the soul. The relations between men are, of course, always
important, but they remain secondary, for the simple reason
that the common life of men, their collective life, is no longer
confused with their being. It is thus not wrongly, from this
point of view, that Hegel

was able to make the coming of

Christianity coincide with subjectivism.

It is above all in the Augustinian

tradition that the fact of

belonging to the supra-terrestrial city would be affirmed at the
expense of that which ties man to those similar to him. ‘The
Christian ceases to be a part of the political organism’, writes
Michel Villey, ‘he is a totality, an infinity, a value in himself.
He himself is an end superior to the temporal ends of politics
and his person transcends the state. Here is the seed of the
modern freedoms of the individual, which will be opposable
t o the state, our future “human rights”’.

By proclaiming

the metaphysical destiny of man, Christianity tends to divert
human justice from its interest in the world of the senses.

Augustine also develops with force the Christian idea

according to which the path towards the higher passes through

the interior: Noli foras ire, in teipsum redi; in interiore homine
habitat veritas (‘Do not go abroad. Return within yourself. In
the inward man dwells truth’).

The internal conscience

thus replaces the world as the locus of truth. It is through the
conscience, the locus of a secret freedom which is also the seat
of the soul, that one can go to God. A tendency toward
reflexivity is introduced into Western thought through this
theme, which will later be transformed into pure subjectivity.
The idea that the conscience is the locus of truth announces, in
fact, the modern idea of a private sphere, cut off from the
public sphere and detached from external contingencies,
which would be the privileged place of the blossoming of the
individual. Descartes

will resume the theme of

Augustinian interiority and orient it in a new direction by
situating the sources of morality in the cogito. Privatisation,
one could say; the promotion of a private sphere where the
good life is reduced henceforth to the ordinary life, begins
with this promotion of the conscience.

The belief in a sole God allows one, besides, to represent all

men without distinction as being equally sons of this god.
Humanity acquires a moral significance by the same stroke.
Radicalising a universalist tendency already present in
Stoicism,

the Christian doctrine proclaims the moral unity

of mankind. ‘It is indisputable’, writes Olivier Mongin, ‘that
the egalitarianism which underlies the natural law of
belonging to a human community cannot be separated from its
Judaeo-Christian

context,

indeed

from

Evangelical

values’.

Although Christian love (agapè)

may well put the

accent on the ‘love of one’s neighbour’, by definition it never
stops at the neighbour. Even if it can admit a hierarchy of
pleasures

legitimate

certain

preferences,

the

metaphysical level it does not know any borders. The
neighbour, especially, is not so much ‘loved’ for himself as he
is as a creature of God. In other words, he is loved only for
that by which he does not differentiate himself fundamentally
from other men — for that even which makes him similar to
the others (the fact of having been created by God). Pierre
Manent has clearly shown that there are two ways for a man to
feel related to other men. The first, quite naturally, involves
directing benevolence towards the one who has the most need
of it, for example, towards the one who suffers. The
relationship between men then derives from compassion. The
second way is quite different: ‘The relationship is not
addressed to the visible and suffering body, it is addressed to
something invisible, to the soul, if you like, more precisely to
the dignity of the person’.

This way is the Christian way.

Christian universalism, being unlimited, contains the seeds of
all the later developments of the idea of fundamental equality.
Agapè already announces the modern ideal of practical
universal benevolence: all human beings should be treated
with an equal respect to which their equal dignity gives them a
right.

The Church proclaims the universal fraternity of men in

Christ and their equality before God, but does not draw from
it, originally, any particular message about the social

organisation of humanity. Under the influence of Aristotle,
Thomas Aquinas continues to profess the idea of an ordered
cosmos and to relate the exercise of the law to the common
good.

Another decisive stage is about to be opened with the

appearance of the notion of subjective law. Historically this is
bound to the rapid development, in the Middle Ages, of the
nominalist

doctrine which, as a reaction to the theory of

‘universals’, claims that there is no being outside the
individual being, that is to say, that there exist in the universe
only individual beings. (This thesis is affirmed by William of
Ockham

in the context of a famous theological debate

bearing on the question of knowing how one can justify the
property rights of the Franciscans when they have taken a
vow of poverty.) Considering only the individual as existing,
there results from this the fact that the collectivity is only a
juxtaposition of individuals, the rights becoming naturally
legitimate individual powers.

Nominalism maintains besides that the natural law is not so

much the reflection of the divine order as of the divine will. Its
partisans argue that a natural order which would indicate good
and evil by itself would finally prevent God from deciding on
good in a sovereign way. Taking into consideration the
absolute freedom of God, it follows that no necessity is
imposed by itself in nature, which permits William of Ockham
to declare that the law is not a just relation between things but
the reflection of a law willed by God. Thereby the universe is
already emptied of sense and of its intrinsic raison d’être.

The n there appears the Spanish Scholastic who, notably

under the influence of political Augustiniansm, derived justice
and law once again from norms derived from the moral law.
(One will note that the term justitia is only derived relatively
late from the Latin word jus: it is only from the Fourth century
that the ‘law’ was related to ‘justice’ in the sense of a universal
philosophical notion.) In the Sixteenth century, under the
influence of the two principal representatives of the School of
Salamanca,

Francisco de Vitoria and Francisco Suárez,

Scholastic theology passes from a notion of objective natural
law founded on the nature of things to a notion of a subjective
natural law founded on individual reason. At the same time
that he affirms the political unity of mankind, the Jesuit
Francisco Suárez declares that social and political reality
cannot be explained merely by the natural inclination to
sociability: an act of will is also required of men, and is an
accord of their wills. (The same idea was later taken up by
Pufendorf.) Francisco de Vitoria adds that ‘the right of people
is what natural reason has established among all peoples’.
Rights, then, become synonymous with an individual faculty
conferred by the moral law, with a moral power of action.
With subjective law, notes Michel Villey, the individual
becomes ‘the centre, the origin, of the legal universe’.

This evolution, sketched rather rapidly, allows us to

apprehend the fundamental difference existing between
Classical natural law and modern natural law. While the nature
of which the first natural law spoke was that of the cosmos
which, as an extrinsic principle, defined an objective

perspective, even though the law which was deduced from it
was also an objective law, modern natural law is a subjective
law wholly deducible from the subject. The principles which it
enunciates, deduced from the rational nature of man, are the
principles according to which men should live, independently
of the existence of a particular society.

From a cosmological naturalism, one is thus, at first, passed

to a theological naturalism. Then, in a later period, the
justification of rights was no longer sought in the fact that all
men have been ‘created in the image of God’ but in the nature
of their nature. Right was no longer thought of as derived
from the divine law but from human nature alone,
characterised by reason. It was a revolution at the same time
philosophical and methodological that will have immediate
political consequences.

The first modern theoreticians of human rights argue in turn

from the idea of a ‘state of nature’, an idea which one found
already in the Sixteenth century in the Spanish Jesuit
Mariana.

‘The right of nature, which writers commonly

call jus naturale’, writes Hobbes

at the opening of

Chapter 14 of his Leviathan, ‘is the liberty each man hath to
use his own power as he will himself for the preservation of
his own nature’.

‘Neither by the word right is anything

signified’, he adds elsewhere, ‘than that liberty which every
man hath to make use of his natural faculties according to
right reason’.

In the state of nature, law is a power which

man can make use of freely. And self-interest is the rule of
this law. For Hobbes, as for Locke who permanently seeks his

own self-interest, his advantage, his utility. It is therefore
because he thinks he finds an advantage in it that he enters
into contractual relations with others (to guarantee his right to
property, according to Locke; in order to defend oneself
against the hostility omnipresent in the state of nature,
according to Hobbes).

Inheritor of nominalism, Hobbes also writes, ‘But

whatsoever is the object of many man’s Appetite or Desire;
that is it, which he for his part calleth Good’.

The formula

is immediately reversed: the desire and the will of each
individual determines his degree of good, and each individual
is the sovereign judge of his own happiness.

‘In one way,’ clarifies Charles Taylor, ‘to speak of a

universal, natural right to life does not seem much of an
innovation… The earlier way of putting it was that there was a
natural law against taking innocent life. Both formulations
seem to prohibit the same things. But the difference lies not in
what is forbidden but in the place of the subject. Law is what I
must obey. It may confer on me certain benefits, here the
immunity that my life, too, is to be respected; but
fundamentally I am under law. By contrast, a subjective right
is something which the possessor can and ought to act on to
put it into effect.’

The first rights are therefore, above all, rights to freedom.

Equality is only the condition required for their realisation.
This priority of freedom is simply explained. Freedom, the
expression of a pure being in itself, an incarnation of the

uniqueness of the individual, qualifies the nature of man
independently of all social relations. Equality is certainly a
correlation of freedom defined in this way (if everyone is
comprised of a free and absolute desire to be oneself, then all
are in a way identical) but, contrarily to freedom, it requires a
minimum of social life to acquire a significance. In certain
respects, as André Clair writes, it fulfils ‘the function of an
element that determines and transforms freedom; by this
determination is formed the social relationship’.

The existence of men being considered as having preceded

their coexistence, the transformation of the simple plurality of
individuals into a society should be explained. The traditional
response is the contract or the market. Unlike an association in
the biblical sense, the social contract is a pact contracted
between equal partners. Following the example of business, it
results from a calculation of self-interest. For Locke, the aim
of all political association is economic: ‘The great and chief
end, therefore, of men’s uniting into commonwealths, and
putting themselves under government, is the preservation of
their property’.

Possessed naturally, the rights are,

besides, conceived on the model of the right to property. One
understands that in the Seventeenth and Eighteenth centuries,
the theory of rights was the privileged instrument used by the
bourgeoisie to succeed in playing a political role proportionate
to its economic weight.

But by the same token, politics loses its status of a cause to

become an effect. The fact of society being no more than the
consequence of a contract undertaken between individuals,

power is no longer an organising force but a secondary
product of society, a superstructure that is always threatening
to the members of the society. (This role of superstructure,
present among all liberal authors, will recur in Marx.)
Concomitantly the political relationship is found to be entirely
redefined on the basis of a new legal norm, corresponding to
the subjective rights of the individual. Civil society, finally, is
identified with the private sphere, that is to say, to that part of
the society shielded from the political life, where individuals
are thought to be able to act freely. ‘The philosophical stake of
modern natural law’, writes Marcel Gauchet, ‘...is going to be
the double redefinition of politics according to the subject: as
regards the political element, the citizen, as the subject of
individual right, and also, as regards the political whole, the
political community, as the collective political subject’.

Thus a triple revolution is accomplished. On the one hand,

the notion of will is substituted for the notion of order. On the
other hand, the individual has moved to the centre and the law
has become his attribute. Finally, the law is identified with
‘justice’, the latter having henceforth an essentially moral
complexion. With Hobbes and his successors, life in society is
conceived in view of the utility of each at the heart of a world
where nature as a unified totality has no more intrinsic value,
nor significance, nor finality. Right is henceforth an individual
property, a quality inherent in the subject, a moral faculty
which grants permissions and authorises demands. Reason is
conceived, fundamentally, as a simple faculty of calculation.
The legal matter ceases to be the just solution (dikaion,

quod bonum est),

and becomes an ensemble of sanctioned

norms and conducts. The state and the law itself are no longer
anything but instruments destined to guarantee individual
rights and to serve the intentions of the contracting parties.

‘It is only by a strong usurpation at the same time furtive

and violent’, writes André Clair, ‘that, at the turning point of
the modern age, this mutation of the concept of right which
has permitted the application of this concept to man has been
accomplished; one then understood right as a property
essentially present in every human being; instead of being a
system of distributing and awarding lots among the members
of a society (to the extent that it was defined primarily in terms
of distributive justice), right is now conceived with a complete
reversal of meaning as a faculty of affirming oneself that
should be rendered absolutely effective for every individual
vis-à-vis everybody else. Every philosophy of human rights is
thus a philosophy of subjectivity, of a subjectivity of course
said to be universal, but recognised initially as individual and
unique.’

If human rights are part of the law, the latter then has

nothing more to do with what one understood by ‘law’ when
the latter was founded. The classical natural law has been
replaced by a modern natural law which argues from radically
different theoretical bases, and does not have before it
anything more than the platitude and manifest inadequacies of
legal positivism.

In reality, as their theological roots demonstrate, human

rights are only law contaminated by morality. But a morality
which does not have anything to do with that of the Ancients,
insofar as it no longer defines what it is good to be, but what it
i s right to do. Since the right precedes and commands the
good, morality is no longer interested in what has a value in
itself, or in what we should admire and love. It is henceforth
interested only in that which is justifiable from the point of
view of reason.

Such a morality derives from the biblical notion of ‘justice’.

It proposes a certain conception of ‘justice’ which, belonging
by definition to the reign of ends, cannot constitute the
specific aim of a politically determined activity. Bertrand de
Jouvenel had already confirmed, with regard to the expression
‘modern natural law’, ‘The key word which does not figure in
the announcement is the word morality, and it is to this elided
noun that the adjective ‘natural’ is related. When one speaks
of natural law, one primarily understands that the foundation
of positive law is in morality’.

Human rights constitute the

legal custom of a moral demand of ‘justice’; they express a
legal means of conceiving and expressing this morality. It is in
this sense that, as Arnold Gehlen

was able to say, the

diffusion of the discussion of human rights derives from the
‘tyranny of moral hypertrophy’.

The dream of a united humanity, subject to the same norms

and living under the same Law, forms the basic fabric of this
discussion. The ideology of human rights posits unified
humanity at once as a given fact and as an ideal, as something
that is and something that should be; in other words, as a sort

of potential truth that cannot be verified and would appear
fully only when it is realised. In such a perspective, the only
differences admitted are ‘differences within the same’ (Marcel
Gauchet). The other differences are denied or rejected for the
sole reason that they cause one to doubt the same. The key
word is that men are everywhere endowed with the same
rights because, fundamentally, they are everywhere the same.
In the final analysis, the ideology of human rights aims at
subjecting all of humanity to a particular moral law
rehabilitating the ideology of the Same.

Excursus: The Church and Human Rights

The theological roots of the ideology of human rights have
been described many times. For a long time, however, as
Jacques Maritain

wrote, ‘the affirmation of rights

themselves

based

Christian

principles

appeared

revolutionary with regard to the Christian tradition’.

The

reason for that is well-known. It rests, from the historical point
of view, in the aggressive rationalist character of the modern
formulation of these rights, in the climate of anti-clericalism
that has surrounded their proclamation, as well as in the anti-
religious persecutions of the Revolution

that followed it.

Besides, from the doctrinal point of view, the Catholic critique
could not admit the elimination of all dimensions of
transcendence implied by the integral subjectivisation of
rights, an elimination which tends to transfer to man a certain
number of divine prerogatives, nor the

fact tha t this

subjectivisation opens the way to an unending demand which,
not being founded on any standard, leads to relativism.

On 23 April 1791, Pope Pius VI expressly condemned the

Declaration of Rights of 1789, accusing the articles which
composed it of being ‘contrary to religion and society’. This
condemnation was renewed for exactly a century. In 1832, for
example, Gregory XVI qualified the theory of human rights as
a ‘veritable delirium’, the same opinion being formulated
again in the encyclical Quanta Cura of 1864.

Matters begin to evolve from the encyclical Rerum Novarum

(1891) of Leo XIII. From this date, under the influence, most
notably, of the thought of Father Luigi Taparelli
d’Azeglio,

whose Essai théorique sur le droit naturel

(1855) sought to give (or to give again) a theological content
to subjective right, the notion of human rights begins to be
introduced into the social thought of the Church.

Immediately after the Second World War, this development

was rapidly accelerated. In 1963, in the encyclical Pacem in
Terris, Pope John XXIII declared that he saw in the Universal
Declaration of Human Rights of 1948 ‘a step in the right
direction, an approach toward the establishment of a juridical
and political ordering of the world community’ (§ 144).

On 7 December 1965, the pastoral constitution Gaudium et
Spes, adopted in the context of the Second Vatican Council,
affirmed that ‘the Church, therefore, by virtue of the Gospel
committed to her, proclaims the rights of man; she
acknowledges and greatly esteems the dynamic movements of

today by which these rights are everywhere fostered’.

Three years later, Paul VI declared in his turn, ‘To speak of
human rights is to affirm a common property of
humanity’.

In 1974, before the General Assembly of the

United Nations, he specified, ‘The Holy See gives its full
moral support to the ideal contained in the Universal
Declaration as to the progressive deepening of the human
rights that are expressed therein’.

John Paul II, finally,

would declare in 1979 that the Universal Declaration of
Human Rights ‘is a milestone on the long and difficult path of
the human race’.

The traditionalist Catholic milieus have, of course,

interpreted this change as a sign, among others, of the
‘rallying’ of the Church to ‘modern ideas’.

Even though

this point of view contains some truth, the reality is a little
more complex. In declaring that it admits human rights, the
Church understands above all that it recognises (and causes to
be recognised) that part in their genealogy that returns to it. It
does not, however, subscribe to the aspects which remain in
its eyes contestable in their present formulation. In other
words, the approval in principle given henceforth by the
Church to the doctrine of human rights refers, first of all, to
the Christian version of these rights. As François Vallançaon
writes, ‘The Church is no more for human rights than against
them. It is favourable to human rights when they are well and
rightly interpreted. It is hostile to them when they are badly
and wrongly interpreted’.

Latin: ‘human rights’.-Ed.

The first known use of the expression ‘human rights’ appeared in the

book Historica Diplomatica Rerum Bataviarum by Volmerus, which
was published in 1537.-Ed.

Latin: ‘justice’.-Ed.

Latin: ‘to each his own’.-Ed.

Marcus Tullius Cicero (106-43 BCE) was a philosopher and famed

orator of the Roman Republic.-Ed.

De oratore [On the Orator], Book 1, Chapter 42.

Le Monde, 8 June 1993, p. 2.

‘The root of liberty is will as the subject thereof; but it is the reason

as its cause.’ From Thomas Aquinas, Summa Theologica: Volume
Two, Part Two, First Section (New York: Cosimo, 2007), p. 656.-Ed.

St. Thomas Aquinas (1125-1274) was a Dominican priest whose

writings became important in both theological and philosophical
debates.-Ed.

Georg W. F. Hegel (1770-1831) was one of the most important

philosophers of the Nineteenth century, being one of the principal
founders of the school known as German Idealism.-Ed.

St. Augustine (354-430) was an important bishop of the latter-day

Roman Empire and was one of the Church Fathers. He outlines his
idea of the heavenly city in his City of God.-Ed.

Philosophie du droit, vol. 1: Définitions et fins du droit, 3rd ed.

(Paris: Dalloz, 1982), p. 131.

This is from Augustine’s On True Religion, in Augustine: Earlier

Writings (Louisville: Westminster John Knox Press, 2006), p. 262.-
Ed.

René Descartes (1596-1650) was a French philosopher who

initiated many of the trends and ideas which have come to preoccupy
modern philosophy and science in particular. One of his central
efforts was to determine how one can be certain that anything
actually exists. His most famous formulation is the proof he offered
in his Meditations on First Philosophy: cogito ergo sum, or ‘I think,
therefore I am’. Although we can doubt the existence of objects in
the world, the fact that we are capable of thinking about them is
proof positive that we ourselves exist.-Ed.

Stoicism was a school of philosophy first developed in ancient

Greece which taught that excessive emotion leads to errors in
judgment. In this case, however, de Benoist is referring to the fact
that the Stoics taught that all individuals, including slaves, were
inherently equal before God and should be treated as such.-Ed.

‘Droits de l’homme, une généalogique complexe’, in Projet,

September-October 1988, p. 53.

Classical Greek: ‘love’. In Christianity, the word took on

connotations of pure, divine love.-Ed.

‘L’empire de la morale’, in Commentaire, Autumn 2001, p. 503.

Nominalism denies that there is any such thing as a universal

concept, maintaining that they are abstractions with no genuine
reality.-Ed.

William of Ockham (c. 1288-c. 1348) was an English Franciscan

friar who was asked to review the concept of Apostolic poverty in
1327, when some Franciscans asserted that since Jesus and his
apostles had owned no personal property, and that therefore, in
contrast to the wealth exhibited at the Vatican, friars should live by
begging alone and that the fact that friars sometimes used property
did not imply that they held ownership of property. He also

maintained that the Pope himself was a heretic. This doctrine was not
accepted by the Church. His text on this debate is ‘A Letter to the
Friars Manor’.-Ed.

The School of Salamanca refers to a theological school which

flourished in Sixteenth-century Spain. The School addressed many
issues, among them being the affirmation of the idea that private
ownership of property is a right and that individuals have the right to
enjoy that property independently of the needs of their community.-
Ed.

La formation de la pensée juridique modern (Paris: Montchrétien,

1975), p. 663.

Juan de Mariana (1536-1624), in The King and the Education of the

King, asserts that following the Fall of Man, humanity in the ‘state of
nature’ of absolute individual freedom, became increasingly subject
to corruption, greed and violence which culminated in the wealthy
and powerful realising that they could terrorise and exploit the weak
through the construction of social hierarchies. The origins of society
are therefore rooted in corruption rather than in an effort to improve
the human situation.-Ed.

Thomas Hobbes (1588-1679) was an English political philosopher

who laid many of the foundations of modern liberal societies.-Ed.

Leviathan (Cambridge: Cambridge University Press, 1991), p. 91.

De cive, or The Citizen (New York: Appleton-Century-Crofts,

1949), p. 27.

Leviathan, p. 39.

Sources of the Self: The Making of Modern Identity (Cambridge:

Cambridge University Press, 1989), p. 11.

Droit, communauté et humanité (Paris: Cerf, 2000), p. 62.

From The Second Treatise of Government , in John Locke: Political

Writings (Indianapolis: Hackett Publishing, 2003), p. 73.

‘Les tâches de la philosophie politique’, in La Revue du MAUSS,

first quarter 2002, p. 282.

Classical Greek: the exact meaning is disputed, but it generally

means ‘what is right’.-Ed.

Latin: ‘that which is best’.-Ed.

Droit, communauté et humanité, pp. 63-64.

‘L’idée du droit naturel’, in Le droit naturel (Paris: PUF, 1959), p.

162.

Arnold Gehlen (1904-1976) was a German philosopher who was

active in the Conservative Revolution. He joined the Nazi Party in
1933 and remained in its ranks until the end of the war, being drafted
into the Wehrmacht in 1943. After post-war denazification, he
continued to write and teach, and his ideas remain influential on the
German Right to this day.-Ed.

Moral und Hypermoral: Eine pluralistische Ethik (Frankfurt am

Main: Athenäum, 1969), chapters 10 and 11. An analogous argument,
founded on the critique of moral universalism, has been repeated
more recently by Hans Magnus Enzensberger in Civil Wars: From
L.A. to Bosnia (New York: The New Press, 1994).

Jacques Maritain (1882-1973) was a French Catholic philosopher

who believed that Christian ethics are a necessary component of
political systems.-Ed.

Natural Law: Reflections on Theory and Practice (South Bend: St.

Augustine’s Press, 2001), p. 79.

The French Revolution of 1789.-Ed.

Cf. Louis de Vaucelles, ‘Les droits de l’homme, pierre

d’achoppement’, in Projet, September-October 1988, pp. 115-128.

Luigi Taparelli (1793-1862) was an Italian Jesuit scholar who was

concerned with the Church’s way of dealing with the social changes
being brought about as a result of the Industrial Revolution. He is
credited with coining the term ‘social justice’. He viewed modern
societies as being comprised of various sub-societies, with
individuals belonging primarily to one of these rather than to society
as a whole.-Ed.

From

the

Vatican

Web

site

(www.vatican.va/holy_father/john_xxiii/encyclicals/documents/hf_j-
xxiii_enc_11041963_pacem_en.html).-Ed.

From

the

Vatican

Web

site

(www.vatican.va/archive/hist_councils/ii_vatican_council/documents/vat-
ii_cons_19651207_gaudium-et-spes_en.html).-Ed.

From a message delivered on the occasion of the 20th anniversary

of the Declaration of Human Rights on 22 April 1968.-Ed.

From a message to the President of the 28th General Assembly of

the United Nations on the occasion of the 25th anniversary of the
Universal Declaration of Human Rights on 10 December 1973.

Cf. René Coste, L’Église et les droits de l’homme (Paris: Desclée,

1982); M. Simoulin, ‘L’Église et les droits de l’homme’, in Les
droits de l’homme, special issue of Vu de haut (Escurolles: Fideliter,
1988); and Giorgio Filibeck, Les droits de l’homme dans
l’enseignement de l’Église, de Jean XXIII à Jean-Paul II (Vatican

City: Libreria Editrice Vaticana, 1992).

Cf. notably Jean Madiran, Les droits de l’homme — DHSD (Maule:

Éditions de Présent, 1988) and L’envers des droits de l’homme (Issy-
les-Moulineaux: Renaissance catholique, 1993). (The quote from
John Paul II is from his address to the 34th General Assembly of the
United Nations on 2 October 1979, available at the Vatican Web site
[http://www.vatican.va/holy_father/john_paul_ii/speeches/1979/october/documents/hf_jp-
ii_spe_19791002_general-assembly-onu_en.html].-Ed.)

‘Les droits de l’homme: analyse et critique’, in La Nef, February

1999, p. 26.

2. IN SEARCH OF A FOUNDATION

When UNESCO

had decided, in 1947, to launch a new

Universal Declaration of Human Rights — the one, indeed,
that would be solemnly proclaimed on the 10 December 1948
b y the General Assembly of the United Nations — its
directors undertook to proceed to a vast preliminary inquiry.
Notably, at the initiative of Eleanor Roosevelt, an international
committee was constituted in order to collect the opinions of a
certain number of ‘moral authorities’. Around 150
intellectuals from all countries were asked in this way to
determine the philosophical basis of the new Declaration of
Rights. This approach ended in failure, and its promoters had
to

limit themselves

registering the irreconcilable

divergences between the responses obtained. Since no accord
emerged, the Commission on Human Rights of the UN
decided not to publish the results of this inquiry.

In his response, Jacques Maritain showed that he had no

illusions, declaring that as regards human rights ‘a practical
accord is possible, [but] a theoretical accord is impossible
among intellectuals’. It is, however, evident that it is difficult
to speak of human rights without a precise conception of man
considered as being the bearer of these rights. No consensus
has ever been established on this point. Not having reached an
accord, one thus decided to give up justifying what one
wished to affirm. The authors of the Universal Declaration
formulated its text in a consensual vision not corresponding to
reality. ‘The Declaration’, affirms François Flahaut, ‘had to be

accepted by all on the condition that nobody ask what justifies
it. That came back to a question of an imposition of
authority’.

René Cassin

was accustomed to saying that human rights

rest ‘on an act of faith in a better tomorrow and the destiny of
man’.

Such an ‘act of faith’ would thus be justified by its

aims. ‘These aims’, writes Julien Freund, ‘we pose as norms,
thus we affirm them dogmatically as valid and worthy of
being pursued; they do not have the incontrovertible character
of a scientific proposition’.

It results from this that the

conception of man on which the theory of rights rests derives
not from knowledge but from opinion. From this sole fact, in
the manner of a religion — every belief is valid only to the
exact extent to which one believes in it — they can have only
a wishful validity, that is to say they are imposed only insofar
as one accepts to see them imposed, and that they have no
other validity but that which one decides to accord them.
‘Every coherent reflection on human rights’, repeats Julien
Freund, ‘can only proceed from the following fundamental
fact: they have not been established scientifically, but
dogmatically’.

‘Human rights’, adds François de Smet,

‘cannot escape their categorisation as an ideology. On account
of this they are exposed to criticism’.

Even the definition of man of which the theory of rights

speaks is less evident than it appears. The proof of this is that
many ‘human rights’ have been extended only progressively
to women and to diverse other categories of human
populations.

One may recall, as a symbol, that the two

Western countries that vigorously maintained the institution of
slavery for the longest time, France and the United States, are
also those that were the first to proclaim human rights. Many
of the authors of the American Declaration of Independence
of 1776, which included a defence of human rights, were,
besides, themselves slave-owners.

There is not any more doctrinal or philosophical consensus

as regards the definition of rights. ‘A sort of vagueness
envelops the notion itself of fundamental rights’, the jurist
Jean Rivero recognises.

When one speaks of a ‘human

right’, does one mean that this right possesses an intrinsic
value, an absolute value or an instrumental value? That it is of
such importance that its realisation should take precedence
over all other considerations, or that it just counts among the
things that are indispensable? That it gives a power or a
privilege? That it permits an immunity or that it confers an
immunity? There are as many responses as there are questions.

The critiques of the theory of rights have often underlined

its vague, but also contradictory character. For example,
Taine

wrote about the Declaration of 1789, ‘most of the

articles are abstract dogmas, metaphysical definitions, more or
less literary axioms, that is to say, more or less false, now
vague and now contradictory, open to various interpretations
and to opposite constructions, these are good for platform
display but bad in practice, mere stage effect, a sort of
pompous standard, useless and heavy...’.

Analogous

words are found in all the authors of the Counter-Revolution.

That there has always been disagreement concerning the

scope and the content of human rights cannot be contested.
Article 2 of the Declaration of 1789, for example, makes the
right of ‘resistance to oppression’ one of the natural and
inalienable rights.

Kant, on the other hand, denies the

existence of such a right and goes so far as to advocate the
duty of obedience to dictatorships.

He justifies this denial

by affirming that right cannot ever be effected except by the
law, which means that a juridical state is possible only by
submission to the legislative will of the state. (Natural law is
here changed abruptly into positive law.) The Declaration of
1789 stipulates also, in the manner of Locke, that the right to
property is ‘inviolable and sacred’. The Declaration of 1948 is
careful not to take this formula into account. The majority of
the defenders of the rights of peoples to self-determination
dissociate people and state, which is indispensable if one
wishes to defend the rights of minorities. But Hans
Kelsen,

theoretician of the state under the rule of law,

expressly refuses this distinction. The principle of the non-
retroactivity of the laws, held in 1789 as an inalienable right,
has been abandoned regarding ‘crimes against humanity’.
Freedom of expression, guaranteed unconditionally in the
United States as one of the human rights, is not in France, the
other ‘country of human rights’, on the pretext that certain
opinions do not merit being considered as such. It is equally
possible in the United States to sell one’s blood, whereas
French law renders null and void any commercial contract
related to a product of the human body. One can multiply the

examples.

Human rights can also be shown to be internally self-

contradictory. In a general way, it is common that rights
originating from positive freedom come into contradiction
with those that originate from negative freedom: the right to
work, for example, can have as an obstacle the right to
property or the right of free initiative. French law has, since
1975, guaranteed the right to abortion, but the text of the laws
on bioethics adopted on 23 June 1994 at the National
Assembly prohibits experiments on embryos, alleging the
need for ‘respect of the human being from the commencement
of life’. If one believes that the embryo is not yet a human
being, one fails to see why it would be prohibited to
experiment on it. If one believes that it is, one fails to see how
abortion can be justified.

How does one untangle in these conditions the ‘true’ rights

from the ‘false’? How does one prevent ‘human rights’ from
becoming an all-purpose expression, a mere flatus vocis

[15]

having only the ever-changing meaning that one attributes to it
in one circumstance or another? Jean Rivero observes for his
part that the ‘major paradox of the fate of human rights for
two centuries is doubtless the contrast between the withering
of their ideological roots and the development of their content
and their audience to a universal level’.

This is another

way of saying that the more the discussion of human rights
extends, the more the uncertainty regarding their nature and
bases grows.

Now, this question of bases is posed nowadays with a quite

particular acuteness. It is, in fact, only recently, as Marcel
Gauchet says, that the problem of human rights ‘has ended up
leaving the books to make itself effective history’.

From

the Nineteenth century, the fashionableness of the theory of
human rights had been reduced, in fact suspended, under the
influence of historicist theories, then revolutionary doctrines.
To think in terms of the movement of history, in terms of
progress, necessarily led to the relativisation of the importance
of law. At the same time, the advent of historical time brought
in a certain discrediting of the abstract intemporality
characterising a ‘state of nature’ from whence the rights
proceeded. The fall of the totalitarian regimes, the fading of
revolutionary hopes, the crisis of all the representations of the
future, and notably the idea of progress, have very logically
coincided with a return of the ideology of rights with renewed
force.

Historically, from 1970, human rights have been opposed to

the Soviet system. Since the collapse of the latter — by a
remarkable coincidence, the year of the fall of the Berlin Wall
was also that of the bicentenary of the Declaration of 1789 —
they have been employed in diverse ways to disqualify
regimes or practices of all sorts, in particular in the Third
World, but also to serve as a model for new national and
international policies. The European Union has itself given
them a position of the highest rank,

while, for some years,

in authors like Rawls, Habermas, Dworkin and many others,
one witnesses a new attempt at a foundation of the political

community on law. The question of the foundation of human
rights is thus posed anew.

In its canonical version, in Locke as in Hobbes, the theory

of rights ‘proceeds by a mythical rationalisation of the origin.
It projects into the abstract past of the state of nature, a past
beyond history, the search for a primordial norm in itself
atemporal with respect to the composition of the political
body’.

One can qualify this procedure as cognitive-

descriptive. Rights, in this view, are that which men are
considered to ‘possess’ by virtue of the mere fact that they are
men. The individual draws his inalienable rights, just as so
many constituent attributes of his being, from the ‘state of
nature’. This is the classical legitimisation by human nature.

This legitimisation appears clearly in the great basic texts.

The American Declaration of Independence declares that all
men are ‘created equal’, and that they are endowed by their
Creator with a certain number of inalienable rights. The
Universal Declaration of 1948 proclaims right from its first
article: ‘All human beings are born free and equal in dignity
and in rights. They are endowed with reason and conscience’.
It is because they are natural and innate that the rights are
inalienable and inalterable.

Many defenders of the ideology of these rights still hold

today to this reasoning. Francis Fukuyama, for example,
affirms that ‘any serious discussion of human rights must
ultimately be based on some understanding of human ends or
purposes, which in turn must almost always be based on a

concept of human nature’.

According to him, only ‘the

existence of a single human nature shared by all the peoples of
the world can provide, at least in theory, a common ground on
which we can base universal human rights’.

That is why

he remains a partisan of the use of the language of rights
(rights talk), this being ‘more democratic, universal and easily
grasped’. He adds that the discourse on rights is valid because
all men have the same preferences, which shows that they are
‘in the end fundamentally similar’.

One finds this

reasoning, of the Lockean type, again among conservatives
like Tibor R. Machan,

Eric Mack, Douglas Rasmussen or

Douglas J. Den Uyl, in a perspective which is also inspired by
the libertarian Objectivism of Ayn Rand.

This approach comes up against very great difficulties,

beginning with the fact that there is no consensus on ‘human
nature’. In the course of history, the notion of ‘nature’ itself
has been the object of the most contradictory definitions. For
the Ancients, human nature orders the individuals according
to the common good. For the Moderns, it legitimises their
right to pursue all sorts of ends, with the result that they
fundamentally have only this right in common. Besides, once
one has demonstrated that there exists a human nature, one has
not at all demonstrated that it follows that man has rights in the
sense which the doctrine of human rights gives to this word.

Hegel had already confirmed that it is difficult to invoke

‘nature’ to conclude from it the equality of men among
themselves: ‘We must rather say that by nature men are only
unequal’.

The life sciences have not belied this point of

view. The study of the biological nature of man, which has
not ceased to progress in recent decades, shows that ‘nature’ is
not very egalitarian and above all that, far from the individual
being the basis of collective existence, it is much rather the
collectivity which constitutes the basis of the existence of the
individual: for Darwin, as for Aristotle, man is, first of all, by
nature a social animal. In an article which caused a great
sensation, Robin Fox wrote that one could also draw from this
study of the biological nature of man conclusions going
directly against the ideology of human rights, for example a
legitimisation of murder, of vengeance, of nepotism, of
arranged marriage or of rape: ‘There is nothing in the “laws of
nature” that says the kin group (the pool of genes related by
descent) should not seek to enhance the reproductive success
of its members’.

Fox drew the conclusion from this that

the ‘human rights’ of which the ideology of human rights
speaks either go against what one effectively observes in
nature, or concern things on which nature says strictly
nothing. One finds again a similar conclusion in Paul
Ehrlich.

Baudelaire,

more radical, affirmed: ‘Nature

can counsel nothing but crime’.

Another difficulty bears on the scope of what one can draw

from a discovered fact. The liberal Anglo-Saxon tradition has
not ceased affirming, following David Hume, G. E. Moore, R.
M. Hare and some others, that one cannot derive conscience
from being: the error of ‘naturalism’

(naturalistic fancy)

would seem to consist in believing that nature can provide a
philosophical justification to morality or law. This affirmation

is extremely questionable, for reasons which we shall not
demonstrate here. But from a liberal point of view, it comes
into contradiction with the idea that the foundation of human
rights is to be sought in human nature. To suppose, even in
effect, that man ever had, in the ‘state of nature’, the
characteristics which the ideology of rights attributes to him, if
one cannot derive a conscience from being, if one cannot pass
from an indicative finding to an imperative prescription, one
cannot see how the fact of ‘rights’ can justify the demand to
preserve them. Such is precisely the argument which Jeremy
Bentham

opposed to human rights: taking into

consideration the division between law and fact, even if
human nature is what the partisans of the rights say of it, one
cannot derive any prescription from it. The same
argumentation is found again, in another perspective, in Hans
Kelsen, as in Karl Popper.

It has been repeated, more

recently, by Ernest van den Haag.

The idea of a ‘state of nature’ having preceded any form of

social life finally seems to be increasingly less tenable today.
Certain defenders of human rights recognised it openly.
Jürgen Habermas, for example, does not hesitate to say that
‘the conception of human rights should be liberated from the
metaphysical weight that is constituted by the hypothesis of an
individual as existing before all socialisation, and coming into
the world, as it were, with innate rights’.

One then tends

to make of the isolated individual a necessary rational
hypothesis or a useful narrative fiction. Rousseau

already

evoked this state of nature that ‘perhaps never did exist’, but

‘of which, it is, nevertheless, necessary to have true
ideas’.

The state of nature is a ‘necessary fiction’ allowing

one to imagine what the condition of men would be like
before they are subjected to any form of obedience, that is to
say, before any social relations. One deduces from it that, in
such a state, they would be ‘free and equal’. This is evidently
pure speculation. ‘Of course’, writes Raymond Aron,

‘the

formulas like “men are born free and equal in rights” do not
stand up to scrutiny: “to be born free”, in the proper sense,
signifies nothing’.

The discourse on human rights that has reappeared today is

therefore much more problematic than that which was
enunciated in the epoch of the Enlightenment. ‘If there is a
return of rights’, observes Marcel Gauchet, ‘it is a right
without Nature. We have the content of subjective right
without the support that permitted its elaboration’.

human nature is not what one believed to know of it in the
Eighteenth century, on what can one found the doctrine of
natural rights? If the future of society no longer corresponds
any longer to an emergence from the ‘state of nature’, how
does one explain it in a way compatible with the theory of
rights, that is to say with a theory centred on the individual?

Certain authors, like James Watson,

think that it would

be better to stop reasoning in terms of the ‘rights’ of man and
to limit oneself to speaking of ‘needs’ or of ‘human interests’.
But this method, which comes back to replacing the moral
approach with an approach of a Utilitarian or consequentialist
type, collides with the fact that no consensus can be

established on the value of ‘interests’ or on the hierarchy of
‘needs’, taking into account the eminently subjective and
intrinsically conflicting character of these notions. Besides,
interests are by definition always negotiable, while values and
rights are not (the right to freedom cannot be reduced to the
interest that an individual may have in being free). Finally,
human rights cannot be founded on Utilitarianism,

since it

posits as a principle that it is always legitimate to sacrifice
certain men if this sacrifice allows one to increase the ‘amount
of happiness’ of a greater number of men.

A more ambitious alternative is that of Kantian philosophy,

which advocates a morality founded on the independence of
the will. ‘The true moral choice’, affirms Kant, ‘implies the
freedom of the will, that is to say a free will which is self-
determined in freeing itself of all natural causality’. Defining
as just every action ‘insofar as it can coexist with the freedom
of every other in accordance with a universal law’, Kant
makes freedom the sole ‘original right belonging to every man
by virtue of his humanity’.

In this view, the pure essence

of law resides in human rights, but the latter are no founded
on human nature, but on dignity (Würde). To respect the
dignity of man is to respect the respect of natural law which he
bears in himself. ‘Humanity itself is a dignity’, writes Kant,
‘for a human being cannot be used merely as a means by any
human being (either by others or even by himself) but must
always be used at the same time as an end. It is just in this that
his dignity (personality) consists, by which he raises himself
above all other beings in the world that are not human beings

and yet can be used, and so over all things’.

Compared to the preceding theoreticians of human rights,

the change of perspective is radical. ‘Originally’, recalls Pierre
Manent, ‘human rights are the natural rights of man, those
which are inscribed in his elementary nature... Human dignity,
in contrast, is constituted, according to Kant, in holding a
radical or essential distance in relation to the needs and desires
of one’s nature’.

The moral theory of Kant is in fact a

deontological theory, that is to say, that it does not depend on
any substantial proposition concerning human nature or the
human aims which would derive from this nature. Reason no
longer receives a substantial definition within it but a purely
procedural definition, which means that the rational character
of an agent is demonstrated by his manner of reasoning, by
his manner of arriving at a result, and not by the fact that the
result of his reasoning is substantially exact, in the sense of a
conformity to an external order. Emanating from will alone,
the moral law expresses the status of the rational agent. This is
an extension of the Cartesian theory of a ‘clear and distinct’
thought, itself derived from the Augustinian conception of
interiority. For Kant, the decisive procedure of reason is
universalisation. From that time, not only are laws no longer
derived from human nature, but they are in a certain way
opposed to it. To act morally is to act according to duty, not
by natural inclination. The moral law is no longer imposed
from outside, it is prescribed by reason itself. The natural
order no longer determines our ends and our normative
objectives, we are henceforth obliged to produce the moral

law from ourselves. That is why Kant recommends that one
conform no longer to nature but to construct an image of
things by following the canons of rational thought. Freedom,
in Kant, is not a tendency or an attribute of human nature, but
the very essence of human will — an absolutised faculty,
detached from all contingency, a faculty permitting one to
detach oneself from all forms of determinism and whose only
criterion is the relationship to the moral universe of abstract
humanism. (An idea rather close to the Calvinist doctrine:
human nature is sinful, and the moral attitude consists in
freeing oneself from all desire or natural tendency. One finds
this idea already in Plato.) The abstraction of human rights,
affirmed at an eminent level, thus places nature out of the
picture. At the limit, humanity is defined as the capacity to free
oneself from nature, to emancipate oneself from all natural
determination, since every given a priori determination
contradicts the independence of the will.

This theory, which one finds also in John Rawls

and

numerous other liberal authors, exposes itself to a well-known
reproach: the principles having been posited a priori, how can
one be sure that they are applicable to empirical reality? And
how does one reconcile the reconcile the disregard for human
nature with the findings of the life sciences, which establish its
reality with ever-increasing force?

Hegel had already

underlined that Kantian universalism, in failing to take into
account social morality (Sittlichkeit), that is to say, the
collection of moral obligations towards the community to
which one belongs which results from the sole fact of

belonging to it — obligations largely founded on established
customs and practices — is incapable of supplying concrete
norms for action. Remaining powerless to fix contents to duty
and to distinguish morally good actions, it does not succeed in
departing from a formal subjectivism. Moral autonomy is thus
acquired only at the expense of emptiness: the ideal of
detachment refers back to a freedom sought for itself, to a
freedom without content. But the same ideal refers back also
to a certain ethnocentrism, for there cannot be formal and
procedural rights which do not imply, in a surreptitious way, a
substantial content: ‘The declaration of right is also an
affirmation of value’ (Charles Taylor). Liberal ethics is
characterised collectively by the search for a formal principle,
axiologically neutral, which can constitute a universalisable
criterion. This axiological neutrality is always artificial.

As for reason, it too can only remain mute about its own

foundations. Alasdair MacIntyre has shown that it is never
neutral or atemporal, but, on the contrary, always tied to a
cultural and socio-historical context.

Kantian reason

believes that it is able to recognise a universal law, that is to
say, a world that would be external to it, when it can never
produce it except from itself. Always dependent on its
particular incarnations, it cannot be disassociated from a
plurality of traditions. The notion of dignity is not less
equivocal. We know that the modern theoreticians of human
rights, even when they do not refer explicitly to the
philosophy of Kant, make great use of it.

The word

‘dignity’, absent from the Declaration of Rights of 1789,

figures in the preamble of the Universal Declaration of 1948
which expressly evokes ‘the dignity inherent in all the
members of the human family’. This dignity is evidently the
character of an abstract humanity. It ‘is always attached to the
intrinsic humanity freed of all socially imposed regulation or
norm’, writes Peter Berger.

We know that, historically,

dignity, attributed to everybody, has replaced honour, which
is only present in some.

In its present definition, the term possesses a certain

religious resonance. The idea of a dignity that is equal in every
man belongs in fact neither to legal language nor to political
parlance, but to the language of morality. In the biblical
tradition, dignity has a precise meaning: it elevates man above
the rest of Creation, it assigns to him a separate status. It posits
him, as the sole titular of a soul, as radically superior to other
living beings.

It also has an egalitarian significance, since

no man can be regarded as more or less worthy than another.
That means that dignity has nothing to do with the merits or
the qualities which are proper to each person, but that it
already constitutes an attribute of human nature. This equality
is placed in relation to the existence of a single god: all men
are ‘brothers’ because they have the same Father ( Malachi
2:10), and because they have all been created ‘in the image of
God’ ( Genesis 9:6). As the Mishnah

[53]

says, ‘Man was

created as a single specimen so that nobody can say to the
other: my father is superior to yours’ ( Sanhedrin 4:5).
Although insisting on love more than on justice, Christianity
has taken responsibility for the same idea: dignity is, first of

all, the quality by which man can rightly be posited as the
master of those without a soul, the centre of Creation.

In Descartes, the affirmation of human dignity is developed

from the evaluation of interiority as a place of self-sufficiency,
as a place of the autonomous power of reason. In the
Moderns, dignity is always an attribute, but instead of this
attribute being received from God, it becomes a characteristic
trait that man possesses directly from his nature. Finally, in
Kant, dignity is directly associated with moral respect. ‘One
could say’, writes Pierre Manent, ‘that the Kantian conception
is a radicalisation, and therefore a transformation, of the
Christian conception that St. Thomas Aquinas in particular
had stressed. If, for St. Thomas Aquinas, human dignity
consists in freely obeying the natural and divine law, for Kant
it consists in obeying the law which man gives to
himself’.

Whatever the meaning one gives to it, dignity becomes

problematic as soon as one posits it as an absolute. One
understands what being ‘worthy of’ means relative to such
and such a thing, but ‘worthy’ in itself? Is dignity, such as the
theory of rights conceives it, a right or a fact? A quality of
nature or of reason? In Rome, dignitas was closely bound to a
relation of comparison necessary to determine the qualities
that caused one to merit something, to be worthy. Cicero:
Dignitas est alicujus honesta et cultu et honore et verecundia
digna auctoritas.

[55]

In this view, evidently dignity could not

be equally present in everybody.

Modern dignity, on the

contrary, is an attribute which cannot be increased or

decreased since it is the reality of everyone. The man who is
worthy is no longer opposed to the man who is unworthy, and
the ‘dignity of man’ becomes a pleonasm since it is the fact of
being a man, whoever one may be, that makes one worthy.
However, if man should be respected by virtue of his dignity
and what his dignity is based on is his right to respect, one is
in a circular argument.

Finally, if everybody is worthy, it

is as if nobody were: the factors of distinction must simply be
sought elsewhere.

Conscious of the difficulties that the legitimation of human

rights by human nature raises, the modern heirs of Kant

abandon their cognitivistic type of method in order to adopt a
prescriptivist approach. But then, strictly, the rights that they
defend are no longer rights. They are only moral exigencies,
‘human ideals’ which represent, at best, only what one needs
to posit as rights to arrive at a social state judged, rightly or
wrongly, as desirable or better. They then lose all compelling
force, for ideals do not in themselves confer any right.

Another manner of founding human rights consists in

making them rest on the fact of belonging to the human
species. Humanity, as in the Bible, is then presented as a ‘big
family’, all the members of which would be ‘brothers’. Those
who adopt this method observe that all men are related to one
another, from the fact of their common membership in the
human species. They then affirm that it is on the foundation of
this relationship that one should attribute to them or recognise
in them the same rights. André Clair thus proposes to make
human rights rest not on equality or freedom but on the ‘third

right’ of fraternity. By the same stroke, the individualist
charge of the Classical theory of rights would find itself
defused: ‘If one thinks of fraternity in relation to paternity,
one finds oneself engaged in a new problem which is no
longer that of human rights in the habitual sense (subjective),
but that of the rooting in a lineage or tradition’.

This method is interesting but it is faced, in turn, with

insurmountable difficulties. First of all, it squarely contradicts
the doctrine according to which human rights are
fundamentally individual rights, the source of these rights
being the individual considered in himself, not according to
his history, his associations or his genealogy. Now, from the
mere belonging to the species, it is evidently easier to derive
collective rights than individual rights. To this contradiction is
added another, insofar as fraternity is defined above all not as
a right, but as a duty that is only apprehended in a normative
mode of the relationship to others: to say that all men are
brothers only means that they should all consider themselves
as such.

The ideological bible of human rights stipulates explicitly

that the rights of which it speaks are those of man in himself,
that is to say, of a man divested of all his associations. From
this it is deduced that the moral status (rights) can never be the
function of membership in a group. Now, humanity indeed
constitutes a group. The question is then of knowing why one
recognises in this group a moral value that one denies to
infraspecific examples, and why one affirms that all
associations should be held as invalid even while considering

one, the membership in humanity, as decisive. Jenny
Teichmann, who is one of the authors who seek to base such
rights on membership in the human species, writes that ‘it is
natural for gregarious beings to prefer the members of their
own species, and humans are not an exception to this
rule’.

But would why this preference, legitimate at the

level of the species, not be so at other levels? If the moral
agents are allowed to concede a preferential treatment on the
basis of the relative proximity created by a common
association, or by the particular type of relations which result
from it, why could this attitude not be generalised? One can
certainly reply that the membership in the species takes
precedence over the others because it is the largest, that it
encompasses all the others. That does not explain why all the
possible associations should be delegitimised in favour of that
which outclasses them, nor why that which is true at one level
should cease to be so at another.

The biological definition of man as a member of the human

species is, besides, just as conventional or arbitrary as the
others: it rests on the sole criterion of specific interfecundity.
However, the evolution of the legislation on abortion has led
one to understand that an embryo is a human being only
potentially and not in act. The underlying idea is that the
definition of man by biological factors alone does not suffice.
One therefore tried to go beyond that, by emphasising that it is
not only because they belong to another species that men are
distinguished from the rest of living beings, but also and
above all by an entire collection of capacities and

characteristics that are typical of them. The inconvenience is
that, whatever the capacity or characteristic retained, it is
improbable that it is found equally present in everyone. To
define, for example, membership in the human species by the
self-consciousness or the capacity of positing oneself as a
subject of rights, immediately poses the problem of the status
of children at a young age, of senile old people and severely
handicapped people.

It is precisely this double contradiction that those who fight

for ‘animal rights’ have not failed to exploit, and even to the
point of attempting to grant human rights to the great apes.
Denouncing as ‘speciesist’ the doctrine according to which
only humans should be recognised as possessors of rights,
they consider that there is nothing moral in attributing a
particular moral status to living beings on the basis of their
membership in a group alone, in this case the human species.
They affirm on the other hand that the great apes belong to the
‘moral community’ to the extent that they possess, at least in a
rudimentary state, characteristics (self-consciousness, moral
sense, elementary language, cognitive intelligence) that certain
‘non-paradigmatic’ humans (the severely handicapped,
disabled, senile, etc.) do not possess or no longer possess. In
other words, against the partisans of the Classical theory of
human rights, they return the argument used by the latter to
discredit infraspecific memberships.

‘To attribute a special value or special rights to the members

of the human species based on the sole fact that they are
members of it’, writes Elvio Baccarini, ‘is a morally arbitrary

position which cannot be distinguished from sexism, racism or
ethnocentrism’.

‘Are we disposed’, adds Paola Cavalieri,

‘to say that the genetic relationship which the membership in a
race implies justifies according a particular moral status to the
other members of one’s race? The negative response leads
thus to a rejection of the defence of humanism based on
relationship’.

The classical response to this sort of argument, which rest

on the deconstruction of the notion of humanity by recourse
to the idea of biological continuity among the living, is that the
animals can be objects of right (we have duties with regard to
them), but not subjects of right. Another reply consists in
deepening the notion of the human species, a third in pushing
the reasoning ad absurdum: why stop at the great apes and not
attribute the same ‘rights’ to felines, to mammals, to insects, to
paramecia? The discussion can in fact only come to a sudden
end insofar as the problem is posed in terms of ‘rights’.

Pope John Paul II, in the encyclical Evangelium Vitae,

affirms for his part that all men and only men are proprietors
of rights, for they are the only beings capable of recognising
and adoring their Creator. This affirmation, apart from being
based on a belief that one is not obliged to share, comes up
against the objection already mentioned above: according to
all evidence, neither the newborn nor the old afflicted with
Alzheimer’s disease, nor the mentally ill, are capable of
‘recognising and adoring’ God. Certain authors do not, for all
that, consider it less necessary to recognise that the basis of the
ideology of human rights is inevitably religious. Michael

Perry, for example, writes that there is no positive reason to
defend human rights if one does not posit straightaway that
human life is ‘sacred’.

This affirmation makes one think

when it emanates, as it often does, from a declared atheist.
Alain Renaut has, not without reason, mocked these
theoreticians who, after having decreed the ‘death of man’,
nonetheless defend human rights, that is to say the rights of a
being whose disappearance they themselves have proclaimed.
The spectacle of those who profess the ‘sacred’ character of
human rights, even while flattering themselves for having
suppressed all forms of the sacred in social life, is no less
comical.

Quite at the other extreme, certain people think, on the

contrary, that the defence of human rights does not need any
metaphysical or moral foundation. For Michael Ignatieff, it is
useless to search for a justification of rights in human nature,
just as it is unnecessary to say that these rights are
‘sacred’.

It is enough to take into account what the

individuals consider in general to be right. William F. Schulz,
executive director of Amnesty International, also assures us
that human rights are nothing else than what men declare to be
rights.

A. J. M. Milne, in a similar manner, tries to define

human rights based on a ‘minimum standard’ determined by
certain moral exigencies proper to all social life.

Rick

Johnstone writes that ‘human rights do not “win” because they
are “true” but because the majority of men have learned that
they are better than others’.

These modest propositions, of

a pragmatic character, are not very convincing. To consider

that rights are nothing else but what men consider to be rights
is tantamount to saying that the rights are of an essentially
procedural nature. The risk is then great of causing the
definition of human rights to fluctuate according to the
subjective opinions of each person. That amounts, at the same
time, to transforming natural rights into vague ideas or into
positive rights. Now, positive rights are still less ‘universal’
than natural rights, since it is often in the name of a particular
positive right that the discussion of human rights is
challenged.

Guido Calogero indeed considers that the idea of a

foundation of human rights should be abandoned in favour of
one of an argumentative justification of it.

[69]

But he admits

that this proposition is hardly satisfying, for it causes the
‘truth’ of human rights to depend on the argumentative
capacity of interlocutors alone, this being always suspended
by new possible arguments. The search for the justification of
human rights then returns to the argumentative search for a
new intersubjective, and therefore necessarily provisional,
consensus, in a perspective which does not fail to recall the
communicative ethics of Jürgen Habermas.

[70]

Norberto

Bobbio,

finally,

maintains

that

philosophical

argumentative foundation of human rights is quite simply
impossible, and besides useless.

[71]

He justifies this opinion

by affirming that human rights, far from forming a coherent
and precise whole, have historically had a variable content. He
admits that a number of these rights can be mutually
contradictory and that the theory of human rights comes up

against all the aporias of foundationalism,

[72]

for no

consensus will ever be able to establish itself on the initial
postulates. A rather similar point of view has been expressed
by Chaïm Perelman.

Whether one alleges human nature or reason, the dignity of

man or his belonging to humanity, the difficulty of
establishing the foundations of human rights thus reveals itself
to be insurmountable. But if human rights are not based upon
truth, their scope is found to be strongly limited as a
consequence. They are no more than ‘consequences without
premises’, as Spinoza

would have said. In the final

analysis, the theory comes back to saying that it is preferable
not to suffer oppression, that freedom is better than tyranny,
that it is not good to do bad to people, and that persons should
be considered as persons rather than as objects, all things that
one could not contest. Was such a detour necessary to arrive at
this point?

United Nations Educational, Scientific and Cultural Organization.-

Ed.

Le sentiment d’exister: Ce soi qui ne va pas de soi (Paris: Descartes

et Cie, 2002), p. 453. Certain contributions to the debate opened by
UNESCO were published in English in 1949 (Comments and
Interpretations) with an Introduction by Jacques Maritain. The work
was republished by UNESCO in 1973.

René Cassin (1887-1976) was a French jurist and judge who helped

to draft the Universal Declaration of Human Rights for the UN. A
veteran of the First World War, he afterwards became a pacifist and
was active in the League of Nations, the Consultative Council of

Jewish Organisations, the UN’s Human Rights Commission, and the
European Court of Human Rights.-Ed.

From Statement on the Implementation of Human Rights (New York:

United Nations, 1948).-Ed.

Politique et impolitique (Paris: Sirey, 1987), p. 192.

Ibid., p. 189.

Les droits de l’homme: Origines et aléas d’une idéologie moderne

(Paris: Cerf, 2001), p. 7.

On the late extension of human rights to women cf. notably Xavier

Martin, L’homme des droits de l’homme et sa compagne (Bouère:
Dominique Martin Morin, 2001).

In Louis Favoreu (ed.), Cours constitutionnelles européennes et

droits fondamentaux (Paris: Presses universitaires d’Aix-Marseille,
1982), p. 521.

Hippolyte Taine (1828-1893) was a French historian and literary

critic who was one of the chief influences on the Naturalist school.
He opposed the ideals of the French Revolution, instead stressing the
importance of race and regionalism.

The French Revolution, vol. 1 (New York: Henry Holt, 1878), p.

211.

One, however, does not see clearly how such a right could result

from the purely individual nature of man, given that there could not
be any ‘oppression’ outside an established public society.

Cf. ‘Sur le lieu commun: c’est peut-être vrai en théorie, mains en

pratique cela ne vaut point’, in Kant, Œuvres philosophiques, vol. 3
(Paris: Gallimard-Pléiade, 1986), p. 265. (An abridged version of this

essay appears in The Theory of International Relations [London:
Allen & Unwin, 1970], as ‘On the Commonplace: This is Perhaps
True in Theory but in Practice it is Not Valid at All’.-Ed.)

Hans Kelsen (1881-1973) was an Austrian-Jewish jurist and legal

scholar who is considered one of the most important legal
philosophers of the Twentieth century. He was also considered to be
the primary nemesis of Carl Schmitt.-Ed.

The term flatus vocis was coined by the Medieval French

nominalist theologian Roscellinus to describe his contention that
only individuals exist, while terms which claim a universal truth are
merely flatus vocis, or an emission of sound without any specific
meaning, like a grunt.-Ed.

Les droits de l’homme: droits individuels ou droits collectifs?

Actes du Colloque de Strasbourg des 13 et 14 mars 1979 (Paris:
Librairie générale de droit et de jurisprudence, 1980), p. 21.

‘Les tâches de la philosophie politique’, in La Revue du MAUSS,

first quarter 2002, p. 279.

The Treaty of Maastricht (1992) stipulates that the European Union

‘shall respect fundamental rights, as guaranteed by the European
Convention for the Protection of Human Rights and Fundamental
Freedoms signed in Rome on 4 November 1950’. The Treaty of
Amsterdam (1997) takes a further step in adding that ‘[t]he Union is
founded on the principles of liberty, democracy, respect for human
rights and fundamental freedoms’ (emphasis added). The European
Community (and not the Union, which does not have a juridical
character) had besides envisaged adhering to the European
Convention of Human Rights. But a judgment rendered by the Court
of European Justice on 28 March 1996 concluded that ‘in the present
state of community rights, the Community does not have the

competence to adhere to the Convention’. Such an adhesion would
have had as a consequence the placing of community institutions
under the judicial tutelage of the Convention — beginning with the
Court of Justice of Luxembourg, which would have found itself once
again in a state of dependence on the Court of Strasbourg. That is the
reason why the European Union, adopting a substitute solution,
decided to announce a list of ‘fundamental rights’ protected by the
Community’s judicial order. This Charter of Fundamental Rights of
the European Union, adopted by the European Council in 2000,
comprises 54 articles preceded by a preamble. Its content reveals a
vast syncretism of sources. As for its concrete value, it remains, at
the moment, rather vague. The question of knowing if the Charter can
be invoked before the national judge has, notably, not been decided.
(The Charter was brought into force with the Treaty of Lisbon, which
took effect on 1 December 2009.-Ed.)

Cf. notably Institut international de philosophie (ed.), Les

fondements des droits de l’homme: Actes des entretiens de l’Aquila,
14-19 septembre 1964 (Florence: Nuova Italia, 1966); and Mauricio
Beuchot, Los derechos humanos y su fundamentación filosófica
(Mexico: Universidad Iberoamericana, 1997).

Marcel Gauchet, art. cit., p. 288.

‘Natural Rights and Human History’, in The National Interest,

Summer

2001,

(available

www.allbusiness.com/government/3583877-1.html).

Ibid., p. 24.

Ibid., p. 30.

Individuals and Their Rights (La Salle, Illinois: Open Court, 1990).

Ayn Rand (1905-1982) was a Russian-American novelist and

philosopher who promoted an extreme form of individualist
capitalism which she termed Objectivism.-Ed.

Hegel’s Philosophy of Mind (Oxford: Oxford University Press,

2007), p. 237.

‘Human Nature and Human Rights’, in The National Interest, New

York, Winter 2000-2001, p. 81. Cf. also Robin Fox, ‘Human Rights
and Foreign Policy’, in The National Interest, New York, Summer
2002, p. 120.

Human Natures: Genes, Cultures, and the Human Prospect

(Washington: Island Press, 2000).

Charles Baudelaire (1821-1867) is regarded as one of the greatest

French poets of the Nineteenth century and was a forerunner of the
Symbolists.-Ed.

The Painter of Modern Life and Other Essays (London: Phaidon

Press, 1995), p. 32.-Ed.

In naturalism, it is maintained that all phenomena can be explained

in terms of the forces of nature, and that there is nothing exterior to
them, hence all supernatural or religious explanations are rejected.-
Ed.

Jeremy Bentham (1748-1842) was an English jurist, social

reformer and Utilitarian philosopher.-Ed.

The Open Society and Its Enemies, 2 vols. (London: Routledge &

Kegan Paul, 1945). Popper considers that taking an example from
nature inevitably leads to holism.

‘Against Natural Rights’, in Policy Review, Winter 1983, pp. 143-

175.

‘Le débat interculturel sur les droits de l’homme’, in L’intégration

républicaine (Paris: Fayard, 1998), p. 252.

Jean-Jacques Rousseau (1712-1778) was a philosopher who taught,

among other things, that ethics stem from man’s natural instincts
rather than being ingrained by society. Rousseau did not see society
as evil, however, believing that injustice only came about with the
development of social inequality in modern societies. He was very
influential upon the French Revolution.-Ed.

On the Origin of Inequality (Chicago: Regnery, 1949), p. 17.-Ed.

Raymond Aron (1905-1983) was a prominent French-Jewish

political philosopher who served in the Free French forces during the
Second World War. Having a strong aversion to totalitarian systems,
he opposed Marxism and those who were influenced by it, including
his friend Jean-Paul Sartre.-Ed.

‘Pensée sociologique et droits de l’homme’, in Études

sociologiques (Paris: PUF, 1988), p. 229.

Art. cit., p. 288.

James Watson (b. 1936) is an English author of novels for young

children. The quest for human rights is a frequent theme in his
books.-Ed.

Utilitarianism is a philosophical school which has its origins in

Nineteenth century England. There are many schools of
Utilitarianism, but in essence it teaches that the morality of an action
is determined by how likely it is to produce the greatest good for the
greatest number of individuals. John Stuart Mill and Jeremy
Bentham were prominent early exponents.-Ed.

On the critique of human rights by Jeremy Bentham, the founder of

Utilitarianism, cf. Jeremy Waldron (ed.), ‘Nonsense Upon Stilts’:
Bentham, Burke and Marx on the Rights of Man (London: Methuen,
1987); and Hugo Adam Bedau, ‘“Anarchical Fallacies”: Bentham’s
Attack on Human Rights’, in Human Rights Quarterly, February
2000, pp. 261-279.

Groundwork for the Metaphysics of Morals (Orchard Park:

Broadview Press, 2005), p. 156.

Ibid., p. 173.

‘L’empire de la morale’, in Commentaire, Autumn 2001, p. 506.

Related to this is the fact that, like many other adherents of a

deontological morality (Ronald Dworkin, Bruce Ackerman, etc.),
Rawls surreptitiously reintroduces into his discourse a certain
number of considerations referring, in spite of everything, to human
nature (particularly when, evoking the hypothetical ‘veil of
ignorance’ which is said to characterise the ‘original position’, he
lends man an innate tendency to refuse risk).

Under the influence of Kant or the empiricism of the tabula rasa,

there are numerous authors who have, from these assumptions, quite
simply denied the existence of a human nature. Cf., in the very first
place, the very critical work of Steven Pinker, The Blank State: The
Modern Denial of Human Nature (New York: Viking Press, 2002),
which has already given rise in Anglo-Saxon countries to a debate of
the widest scope. Pinker sees in human nature, which he wishes to
rehabilitate, a veritable ‘modern taboo’.

Whose Justice? Which Rationality? (Notre Dame: University of

Notre Dame Press, 1988).

Cf., notably, Myres S. McDougal, Harold D. Lasswell and Lung-

chu Chen, Human Rights and World Public Order (New Haven: Yale

University Press, 1980).

‘On the Obsolescence of the Concept of Honour’, in Stanley

Hauerwas and Alasdair MacIntyre (eds.), Revisions (Notre Dame:
University of Notre Dame Press, 1983).

Cf. Alain Goldmann, ‘Les sources bibliques des droits de

l’homme’, in Shmuel Trigano (ed.), Y a-t-il une morale judéo-
chrétienne? (Paris: In Press, 2000), pp. 155-164.

The Mishnah is a collection of debates which were discussed by

ancient rabbis, and comprises part of what is known as the Oral
Torah, since it was initially passed down orally before being
transcribed.-Ed.

Art. cit., p. 505.

‘Dignity is the honourable authority of a person, combined with

attention and honour and worthy respect paid to him’. Cicero, ‘De
Inventione’, in The Orations of Marcus Tullius Cicero (London : H.
G. Bohn, 1856), vol. 4, Book 2, Chapter 55, p. 376.-Ed.

A distant echo of this hierarchy is found in Christian theology

when it distinguishes the ‘perfect dignity’ of Christians from the
‘imperfect dignity’ of the non-baptised.

Cf. Jacques Maritain, Les droits de l’homme (Paris: Desclée de

Brouwer, 1989), pp. 69-72.

We may cite, for example, A. I. Melden, Rights and Persons

(Oxford: Oxford University Press, 1972); and Joel Feinberg, Rights,
Justice, and the Bounds of Liberty (Princeton: Princeton University
Press, 1980).

Cf. on this subject S. S. Rama Rao Pappu, ‘Human Rights and

Human Obligations: An East-West Perspective’, in Philosophy and

Social Action, November/December 1982, p. 20.

Droit, communauté et humanité (Paris: Cerf, 2000), p. 67.

Social Ethics: A Student’s Guide (Oxford: Basil Blackwell, 1996),

p. 44.

‘On Speciesism’, in Synthesis Philosophica, 2000, issue 1-2, p.

107.

‘Les droits de l’home pour les grands singes non humains?’, in Le

Débat, January/February 2000, p. 159. Cf., in the same issue, the
speeches of Luc Ferry, Marie-Angèle Hermitte and Joëlle Proust. Cf.
also Peter Singer, Animal Liberation (New York: New York Review
of Books, 1990); and Paola Cavalieri and Peter Singer, The Great Ape
Project: Equality Beyond Humanity (New York: St. Martin’s Press,
1994). An analogous argument had been maintained in the past, but
in a humorous manner, by Clément Rosset in Lettre sur les
chimpanzés (Paris: Gallimard, 1965). Princess Stéphanie of Monaco
did not hesitate to declare, ‘Animals are men like the others’. A
Universal Declaration of Animal Rights was proclaimed on 15
October 1978 at UNESCO. Its first article affirms that ‘All animals
have equal rights to exist within the context of biological
equilibrium’.

The Idea of Human Rights: Four Inquiries (New York: Oxford

University Press, 1998), pp. 11-41. Cf. also Liam Gearon (ed.),
Human Rights and Religion: A Reader (Brighton: Sussex Academic
Press, 2002).

Human Rights as Politics and Idolatry (Princeton: Princeton

University Press, 2001).

In Our Own Best Interest: How Defending Human Rights Benefit

Us All (New York: Beacon Press, 2002).

Human Rights and Human Diversity: An Essay in the Philosophy of

Human Rights (London: Macmillan, 1986).

‘Liberalism, Absolutism, and Human Rights: Reply to Paul

Gottfried’, in Telos 116, Summer 1999, p. 140.

[69]

‘Il fondamento dei diritti dell’uomo’, in La Cultura, 1964, p. 570.

[70]

For Habermas, the agent is above all constituted by language, thus

by communicative exchange. Reason is made to progress via the
means of a consensus obtained through discussion. Cf. The Theory of
Communicative Action, 2 vols. (Boston: Beacon Press, 1984, 1987).
Habermas proposes to redefine human rights starting with respect for
the subject as the basis of ‘communicative activity’. He denies on the
other hand that human rights are of a moral nature, adding, however,
that ‘what confers on them the appearance of moral rights is not their
content...but the sense of their validity, which surpasses the judicial
system of the United Nations’ (La paix perpétuelle: Le bicentenaire
d’une idée kantienne [Paris: Cerf, 1996], p. 86).

[71]

Per una teoria generale della politica (Turin: Einaudi, 1999), pp.

421-466.

[72]

Foundationalism is an epistemological theory which holds that all

beliefs are founded on the suppositions of what are termed ‘basic
beliefs’. Basic beliefs are said to be derived directly through
experience and thus are self-evident, not relying on other beliefs for
support.-Ed.

Chaïm Perelman (1912-1984) was a Polish-Jewish legal

philosopher who lived most of his life in Belgium. In his work he
attempted to navigate a middle road between scepticism and
positivism. He is also regarded as one of the most important
theoreticians of rhetoric in the Twentieth century.-Ed.

Baruch Spinoza (1632-1677) was a Dutch Jewish philosopher who

is regarded as one of the greatest philosophers of all time. He makes
this remark in relation to ‘confused ideas’ in his Ethics, Part Two,
Proposition 28.-Ed.

3. HUMAN RIGHTS AND CULTURAL

DIVERSITY

Human rights are only universal if they include the right not to

believe in the dogma of the universality of rights. — Giuliano

Ferrara

The theory of human rights is given as a theory valid for all
time and for all places, that is to say, as a universal theory.
This universality, reputedly inherent in each individual posited
as a subject, represents in it the standard applicable to all
empirical reality. In such a view, to say that the rights are
‘universal’ is only another way of saying that they are
absolutely true. At the same time, everybody knows well that
the ideology of human rights is a product of the thought of the
Enlightenment,

and

that the very idea of human rights belongs

to the specific context of Western modernity. The question
then arises of knowing if the narrowly circumscribed origin of
this ideology does not implicitly contradict its pretensions to
universality. Since every declaration of rights is historically
dated, does not a tension, or a contradiction result from it,
between the historical contingency that presided at its
elaboration and the demand of universality which it intends to
affirm?

It is clear that the theory of rights, with respect to all human

cultures, represents the exception rather than the rule — and
that it even constitutes exception within European culture,
since it appeared only at a definite moment and relatively late
in the history of this culture. If the rights have been ‘there’

always, present in the very nature itself of man, one may be
surprised that only a small portion of humanity has perceived
it, and that it has taken it so long to be perceived. How does
one understand that the universal character of rights appeared
as something ‘evident’ only in a particular society? And how
does one imagine that this society could proclaim its universal
character without at the same time vindicating its historical
monopoly? That is to say, without positing itself as superior to
those who have not recognised it?

The notion of universality itself raises problems. When one

speaks of the universality of rights, of what type of
universality does one wish to speak? Of a universality of a
geographical, philosophical or moral order? The universality
of rights, besides, comes up against this question, posed
straightaway by Raimundo Panikkar: ‘Is there any sense in
asking oneself if the conditions of universality are unified
when the question of universality itself is far from being a
universal question?’

To say that all men are possessors of the same rights is one

thing. To say that these rights should be recognised
everywhere under the form that the ideology of rights gives it
is another, quite different thing. That raises, in fact, the
question of knowing who has the authority of imposing this
point of view, what is the nature of this authority, and what
guarantees the soundness of his discourse. In other words:
who decides that it should be thus and not otherwise?

All universalism tends towards the neglect or effacement of

differences. In its canonical formulation, the theory of rights
itself seems little disposed to recognise cultural diversity, and
this is the case for two reasons: on the one hand its
fundamental individualism, and the highly abstract character
of the subject whose rights it proclaims, and on the other hand
its privileged historical links with Western culture, or at least
with one of the constituent traditions of this culture. One had a
perfect illustration of that when the French Revolution
affirmed the necessity of ‘refusing everything to the Jews as a
nation and according everything to them as individuals’,
which came to link the emancipation of the Jews to the
disintegration of their communal links.

Since then, the

discourse of human rights has not ceased to be confronted by
human diversity such as is expressed in the plurality of
political systems, of religious systems and of cultural values.
Is this discourse dedicated to dissolving them or can it
subsume them at the risk of dissolving itself? Is it compatible
with the differences or can it only try to make them disappear?

All these questions, which have given rise to a considerable

amount of literature,

end, in the final analysis, in a simple

alternative: that is, one maintains that the constituent concepts
of the ideology of human rights are, in spite of their Western
origin, truly universal concepts. Then one has to demonstrate
this. Or one should give up their universality, which would
ruin the entire system: in fact, if the notion of human rights is
purely Western, then its universalisation at the planetary level
patently represents an imposition from outside, a devious way
of converting and dominating, that is to say a continuation of

the colonial syndrome.

An initial difficulty appears already at the level of

vocabulary. Up until the Middle Ages, one does not find in
any European language — not more than in Arabic, Hebrew,
Chinese or Japanese — a term designating a right as the
subjective attribute of the person, distinct in itself from the
judicial matter (the law). Which is the same as saying that,
until a relatively late period, there did not exist any word to
designate these rights considered as belonging to men by
virtue of their humanity alone. This fact alone, judges Alasdair
MacIntyre, leads one to doubt their reality.

The very notion of right is not in the least universal. The

Indian language has to only approximate equivalents to
express it, such as yukta and ucita (appropriate), nyayata (just)
or again dharma (obligation). In Chinese, ‘right’ is translated
by the juxtaposition of two words, chuan li, indicating power
and interest. In Arabic, the word haqq, ‘right’, means, first of
all, truth.

The theory of human rights postulates, besides, the existence

of another universal human nature, independent of epochs and
places, which would be recognisable by means of reason. Of
this affirmation, which does not belong to it properly (and
which in itself is in no way contestable), it gives a very
particular interpretation implying a triple separation: between
man and other living beings (man is the sole possessor of
natural rights), between man and society (the human being is
fundamentally the individual, and the social fact is not

pertinent for knowing his nature), and between man and the
cosmic whole (human nature does not owe anything to the
general order of things). Now, this triple separation does not
exist in the vast majority of non-Western cultures, including
of course those which recognise the existence of a human
nature.

The problem comes up quite particularly in the case of

individualism. In the majority of cultures — as besides, one
must recall, in the original Western culture — the individual in
himself is quite simply not representable. He is never
conceived as a monad, cut off from what connects him not
only to his immediate neighbours, but to the community of
living beings and to the entire universe. The notions of order,
justice and harmony are not elaborated from him, nor from the
individual place which would be that of man in the world, but
from the group, the tradition, and the social relations, or the
totality of reality. To speak of the freedom of the individual in
himself thus makes no sense in the cultures which have
remained fundamentally holistic, and which refuse to conceive
of the human being as a self-sufficient atom. In these cultures,
the notion of subjective rights is absent, whereas those of
mutual obligation and reciprocity are omnipresent. The
individual does not have to justify his rights but to work to
find in the world, and first of all in the society to which he
belongs, the most propitious conditions for the realisation of
his nature and the excellence of his being.

Asiatic thought, for example, is expressed above all in the

language of duties. The basic moral notion of Chinese thought

is that of the duties which one has towards others, not that of
the rights that one could oppose to them, for ‘the world of
duties is logically anterior to the world of rights’.

In the

Confucian tradition, which cultivates the harmony between
beings and nature, the individual could not possess rights
superior to the community to which he belongs. Men are
related to each other by the reciprocity of duties and mutual
obligation. The world of duties is, besides, more extended
than that of rights. While there is a theoretical correspondence
between each right and a duty, it is not true that to each
obligation there corresponds a right: we can have obligations
towards certain men from whom we have nothing to expect,
and also towards nature and animals, which do not owe us
anything.

In India, Hinduism represents the universe as a space where

the beings traverse cycles of many forms of existence. In
Taoism, the tao of the world is regarded as a universal fact
that governs the course of beings and things. In Black Africa,
the social relationship includes living beings as well as the
dead. In the Middle East, the notions of respect and honour
determine the obligations within the extended family and the
clan.

All these facts are hardly reconcilable with the theory

of rights. ‘Human rights are Western values’, writes Sophia
Mappa, ‘which other societies, despite lip service, do not at all
share’.

To posit that what comes first is not the individual but the

group does not at all signify that the individual is ‘enclosed’ in
the group, but rather that he acquires his individuality only in

connection with a social relationship which is also a
constituent of his being. That does not signify either that the
desire to escape despotism, coercion or ill treatment does not
exist everywhere. Between the individual and the group,
tensions may surge. That fact is indeed universal. But what is
not at all universal is the belief according to which the best
means of preserving freedom is to posit, in an abstract
manner, an individual deprived of all his concrete
characteristics, disconnected from all his natural and cultural
affiliations. There are conflicts in all cultures, but in the
majority of them, the vision of the world which predominates
is not a conflicting vision (the individual against the group),
but a ‘cosmic’ vision organised according to the order and the
natural harmony of things. Each individual has his role to play
in the whole into which he is positioned, and the role of
political power is to ensure as best it can this coexistence and
this harmony, which is the guarantee of eternity. Just as power
is universal but the forms of power are not, the desire for
freedom is universal, whereas the ways of responding to it can
vary considerably.

The problem becomes especially acute when the social or

cultural practices denounced in the name of human rights are
not imposed practices but customary practices, evidently
enjoying widespread popularity amidst given populations
(which does not mean that they are never criticised by them).
How can a doctrine founded on the free disposition of
individuals by themselves oppose it? If the men should be left
free to do what they want as long as the use of their freedom

does not encroach upon that of the others, why could not
peoples of whom certain customs appear to us shocking or
condemnable be left free to practice them as long as they do
not seek to impose them on others?

The classic example is that of female circumcision, still

practiced today in numerous countries of Black Africa (as well
as in certain Muslim countries). It is quite evidently a question
of a harmful practice, but it is difficult to extract it from an
entire cultural and social context in which it is, on the
contrary, considered as morally good and socially necessary:
an uncircumcised woman will not be able to get married and
will not be able to have children, which is why the women
who are circumcised are the first to have their daughters
circumcised. The question arises of determining in the name
of what one can prohibit a custom which is not imposed on
anybody. The only reasonable reply is that one can only
provoke the people concerned to reflect on its favourableness,
that is to say, to encourage an internal critique of the
considered practice. It is those men and women whom the
problem essentially concerns who should grapple with
it.

To cite another example, when a woman is stoned in a

Muslim country and that infuriates the defenders of human
rights, one can ask oneself exactly what this condemnation
relates to: to the mode of execution (stoning), to the fact that
adultery should be punished by death (or that it is quite simply
punishable), or to the death penalty itself? The first reason
seems of a mostly emotional sort.

The second can at least

be discussed (whatever feeling one may have on the question,

in the name of what can one prevent the members of a given
culture from considering adultery to be an offense that merits
sanction and from freely evaluating the gravity of this
punishment?). As for the third, it makes of every country that
maintains the death penalty, beginning with the United States,
a violator of human rights.

‘To pretend to attribute a universal validity to human rights

formulated in this way’, writes Raimundo Panikkar, ‘is to
postulate that the majority of the peoples of the world are
engaged, practically in the same way as the Western nations,
in a process of transition from a more or less mythical
Gemeinschaft

[13]

… to a ‘modernity’ organised in a ‘rational’

and ‘contractual’ manner, such as the industrial Western world
knows it. That is a contestable postulate’.

So much so that

‘to proclaim the concept of human rights … could well be
shown to be a Trojan horse introduced secretly into the heart
of other civilisations with the aim of forcing them to accept
those modes of existence, thought and feeling for which
human rights constitute an emergency solution’.

To accept cultural diversity demands a full recognition of

the Other. But how to recognise the Other if his values and
practices are opposed to tho se that one wishes to inculcate?
The adherents of the ideology of rights are generally partisans
of ‘pluralism’. But what compatibility is there between human
rights and the plurality of cultural systems and religious
beliefs? If the respect for individual rights passes through a
non-respect for cultures and peoples, should one conclude

from this that all men are equal, but that the cultures that these
equals have created are not equal?

The imposition of human rights represents, quite evidently,

an acculturation whose realisation risks bringing about the
dislocation or eradication of collective identities which also
play a role in the constitution of individual identities. The
Classical idea according to which human rights protect the
individuals against the groups to which they belong and
constitute a recourse with regard to the practices, laws and
customs that characterise these groups thereby proves to be
doubtful. Do those who denounce such or such a ‘violation of
human rights’ always measure exactly at what point the
practice that they criticise can be characteristic of the culture in
the midst of which it is observed? Are those who complain of
the violation of their rights ready, for their part, to pay for the
observation of these rights with the destruction of their
culture? Would they not rather wish tha t their rights be
recognised on the basis of what specifies their culture?

‘Individuals’, writes Paul Piccone, ‘are protected only when

the essence of human rights is already embedded in a
community’s particular legal system and the people really
believe in them.’

This remark is correct. By definition,

human rights can be invoked only where they are already
recognised, in the cultures and countries which have already
internalised their principles — that is to say, where,
theoretically, one should no longer have any need of invoking
them. But if human rights can only be efficacious where the
principles on which they are founded have already been

internalised, the dislocation of cultures provoked by their
brutal importation goes directly against the objective being
pursued. ‘The paradox of human rights’, adds Piccone, ‘is that
their implementation implies the erosion and destruction of the
conditions (traditions and customs) without

which their

implementation becomes precisely impossible’.

It was to try to reconcile the ideology of rights with cultural
diversity tha t the notion of the rights of peoples to self-
determination was elaborated. This new category of rights was
theorised in particular immediately after the Second World
War, notably in the context of the nationalistic demands that
were to end in decolonisation, but also under the influence of
ethnological works such as Claude Lévi-Strauss’

which,

in reaction to the adherents of social evolutionism (Lewis
Morgan),

denounced the ravages of acculturation and

placed the accent on cultural specificities or on the need of
recognising rights particular to ethnic minorities. More
recently, the renewal of identitarian affirmations of all sorts, a
compensatory reaction during the decline of national identities
and the growing sclerosis of nation-states has set this subject
once again as the order of the day. For Lelio Basso,

great defender of the rights of peoples to self-determination,
the true ‘subjects of history are the peoples, who are equally
the subjects of right’.

A Universal Declaration of the Rights of Peoples was

adopted in Algeria on 4 July 1976, the anniversary of the

bicentenary of the American Declaration of Independence. It
stipulates that ‘every people has the right to respect its national
and cultural identity’ (Article 2), that every people ‘determine
its political status in total freedom’ (Article 5), that it possesses
‘an exclusive right to its riches and natural resources’ (Article
8), that it has the ‘right to give itself the economic and social
system of its choice’ (Article 11), the ‘right to speak its
language, to preserve and to develop its culture’ (Article 13),
as well as ‘the right not to see a culture imposed on it which is
alien to it’.

The enumeration of these rights alone, which for the most

part have remained a dead letter, suffices to show to what
point their harmonisation with the Classical theory of human
rights is problematic. The right to maintain a collective
identity, for example, can antagonise certain individual rights.
The right to collective security can also bring about severe
limitations of individual freedoms. In a more general way,
writes Norbert Rouland, ‘it is certain that the notion of human
rights has the effect of blocking the recognition of the
collective rights of ethnic groups’.

As for the rights of

peoples to organise themselves, which has served as the basis
of decolonisation, it contradicts straightaway the right to
interference with a ‘humanitarian’ objective.

The optimists think that the individual rights and collective

rights are spontaneously harmonised because they are
complementary, although opinions differ on the hierarchy that
is imposed between the former and the latter. Edmond Jouve
thus assures us that ‘human rights and the rights of peoples to

self-determination cannot contradict each other’.

Others,

more numerous, stress undeniable contradictions, but draw
opposite conclusions from them. ‘Many of them have come to
thi n k tha t the notion of the rights of peoples to self-
determination was only an abstraction destined to justify the
replacement of one oppression by another and that only the
rights of individuals counted’, observes Léo Matarasso.
‘Others, on the contrary, consider that human rights are only
invoked as an ideological alibi to justify actions prejudicial to
the rights of peoples to self-determination’.

One finds the same diversity of opinions with regard to the

‘universal’, or, on the contrary, strictly Western, character of
human rights. Following Alain Renaut, who affirms that ‘the
reference to universal values does not in no way implies
contempt for the individual’,

a majority of the partisans of

the ideology of rights continue to forcefully maintain its
universality. ‘Human rights’, declares John Rawls, ‘are not the
consequence of a particular philosophy, nor of one way
among others of looking at the world. They are not tied to the
cultural tradition of the West alone, even if it was within this
tradition that they were formulated for the first time. They just
follow from the definition of justice’.

The implicit

postulate here is evidently that there is only one possible
definition of justice. [T]hough it is true that the values implicit
in the Universal Declaration of Human Rights derive from the
Enlightenment tradition, virtually every country in the world
has affirmed them’.

How is it, then, that it is necessary to

have recourse to arms so often in order to impose them?

From such a perspective, it would be in some way by

chance that the West had arrived earlier than the others at the
‘stage’ where it would have been possible to explicitly
formulates an aspiration present everywhere in a latent way.
This historical priority would not confer on it a particular
moral superiority. The Westerners would be just ‘in advance’,
whereas the other cultures would be ‘behind’. That is the
classical scheme of the ideology of progress.

The discussion of the universality of human rights, in fact,

evokes very often those ‘ecumenical’ dialogues where one
wrongly takes for granted that all the religious beliefs echo, in
different forms, common ‘truths’. The reasoning maintained
to demonstrate that the rights are universal is almost always
the same. It consists of affirming that there exists everywhere
in the world a desire for well-being and freedom, and then of
deriving a ground from which to legitimate that discourse of
rights which is considered to be a response to this
demand.

Now, such a conclusion is perfectly erroneous.

Nobody has ever denied that all men have certain aspirations
in common, nor that a consensus may be established to
consider at least certain things as intrinsically good or
intrinsically bad. Everywhere in the world men prefer to be
healthy rather than ill, free rather than restricted, everywhere
they hate to be beaten, tortured, imprisoned arbitrarily,
massacred, etc. But from the fact that certain conditions are
human, it does not follow at all that the discourse of rights is
validated, and much less that it is universal. In other words, it
is not the universality of the desire to escape coercion that it is

a question of demonstrating, but the universality of the
language that one expects to use to respond to this desire. The
two levels cannot be confused. And the second demonstration
has still not been achieved. The way in which the different
values are combined among themselves is, besides, rarely
abstract in the majority of cultures, for the simple reason that
each of these values receives a different complexion within
each culture. As Charles Taylor has emphasised several times,
to say that a value is good is the same, at first, as saying that
that culture in which this value is favoured itself deserves to
be considered good. As for reason, which is far from being
axiologically neutral, every attempt at associating it with any
value, even one which is decreed to be ‘universal’, ties it
inexorably to the particular culture where this value is
honoured.

To the question, ‘Is the concept of human rights a universal

concept?’, Raimundo Panikkar responds thus with clarity:
‘The reply is quite simply no, and that for three reasons. A)
No concept is universal in itself. Each concept is valid in the
first place where it has been conceived. If we wish to extend
its validity beyond the limits of its proper context, we should
justify this extrapolation... Besides, every concept tends to
univocity.

To accept the possibility of universal concepts

would imply a strictly rationalist conception of truth. But even
if this position corresponded to the theoretical truth, the
existence of universal concepts would not result from it, on
account of the plurality of the universe of discourse which
mankind de facto presents... B) Amidst the vast field of

Western culture itself, even the postulates that serve to locate
our problem are not universally admitted. C) If one would just
adopt the attitude of a transcultural mind, the problem would
appear exclusively Western, that is to say, it is the question
itself that is in question. The majority of the postulates and
other related presuppositions enumerated above are quite
simply absent from other cultures’.

This is the reason why certain authors have resigned

themselves to admitting that human rights are a ‘Western
construct with limited applicability’,

applicable with

difficulty in any case in the cultures whose tradition is alien to
liberal individualism. Raymond Aron had himself recognised
it: ‘Every declaration of rights would appear finally as the
idealised expression of the political or social order that a
certain class or a certain civilisation is forced to realise... By
the same token, one understands the equivocality of the
Universal Declaration of Rights of 1948. It borrows from
Western civilisation even the practice of a declaration of
rights, since other civilisations are unaware not of collective
norms or individual rights, but of the theoretical expression,
claiming to be universal, of the former or of the latter’.

The critique of the universalism of rights in the name of

cultural pluralism is not new. Herder

and Savigny,

Germany, like Henry Sumner Maine

in England, have

shown that legal matters could not be understood without
taking into account the cultural variables. One finds an
analogous critique in Hannah Arendt

when she writes that

‘the paradox of abstract rights is that in deriving the rights

from a displaced humanity, they risk depriving of identity
those who are precisely victims of the deracinations imposed
by modern conflicts’.

On the same grounds, Alasdair MacIntyre addresses three

objections to the ideology of human rights. The first is that the
notion of rights, such as this ideology posits it, is not found
everywhere, which shows that it is not intrinsically necessary
to social life. The second is that the discussion of rights, even
when it professes to proclaim rights derived from an
atemporal human nature, is narrowly circumscribed to a
determined historical period, which renders the universality of
its discourse hardly credible. The third is that every attempt to
justify the belief in such rights ends in failure. Emphasising
that one can only have rights and enjoy them in a type of
society possessing certain established rules, MacIntyre writes:
‘These rules appear only in particular historical periods and in
particular social circumstances. These are not at all universal
characteristics of the human condition’.

He concludes

from this that such rights are, just like sorcerers and unicorns,
only a fiction.

The theory of human rights, insofar as it is posited
straightaway as a universal truth, represents in certain respects
a reaction against relativism. There is a certain paradox there,
since this theory emanates from the same doctrinal liberalism
which, historically, has also legitimised relativism by
proclaiming the equal right of each individual to pursue the

ends that he has independently chosen. (The contradiction
appears clearly in those who praise ‘multiculturalism’ from a
strictly relativist position, when they denounce at the same
time such or such a cultural tradition as an ‘attack on human
rights’.) But the ideology of human rights, if it avoids
relativism, inversely runs the risk of falling into
ethnocentrism. This is what Hubert Védrine, the former
Minister of Foreign Affairs,

confirmed when he said that

the bible of human rights comes to consider ‘that Western
values are, en masse and without possible discussion or
nuance, universal and invariable values and that every
questioning on this subject, every pragmatism is a
sacrilege’.

‘To hold as established that, without an explicit recognition

of human rights, life would be chaotic and deprived of
meaning’, writes Raimundo Panikkar for his part, ‘derives
from the same mentality as maintaining that, without the belief
in a sole God such as is understood in the Abrahamic
tradition, human life would be dissolved into total anarchy. It
would suffice to push a little further in this direction to
conclude that atheists, Buddhists and animists, for example,
must be considered as the representations of human
aberrations. In the same vein: either human rights or
chaos’.

Such a slide is avoidable only with difficulty. As soon as a

doctrine or a culture believes that it is the bearer of a
‘universal’ message it manifests an invincible propensity to
travesty its particular values as such. It then disqualifies the

values of others, which it perceives as deceptive, irrational,
imperfect or quite simply outmoded. With the best of good
intentions, since it is convinced that it speaks in the name of
truth, it professes intolerance. ‘A universalist doctrine evolves
ineluctably toward a model equivalent to the one-party state’,
said Lévi-Strauss.

In an epoch when cultural and human diversity is indeed the

last thing about which the economic and market ideology that
dominates the planet is concerned, the ideology of rights thus
surreptitiously resumes old discussions of domination and
acculturation. Accompanying the planetary extension of the
market, it provides it with the ‘humanitarian’ dress which it
needs. It is no longer in the name of the ‘true faith’, of
‘civilisation’, of ‘progress’, or indeed of the ‘White man’s
burden’

that the West believes that it is justified in

directing the social and cultural practices existing in the world,
but in the name of the morality incarnated in the law. The
affirmation of the universality of human rights, in this sense,
does not represent anything else but the conviction that
particular values, those of modern Western civilisation, are
superior values which must be imposed everywhere. The
discussion of rights permits the West once more to install itself
as the moral judge of humankind.

‘In identifying the defence of human rights and the defence

of Western values’, write René Gallissot and Michel Trebitsch,
‘a new, more insidious and more subtle ideology, a “soft”
ideology allows one to substitute for the East-West
Manichaeism born in the Cold War, a North-South

Manichaeism where Western-style freedom hopes to regain its
virginity’.

‘The Western model’, observes, for her part,

Sophia Mappa, ‘…must be imposed on humanity as if it were
endowed with a natural objectivity which would ensure it
superiority over the others. According to the same idea, the
diverse social systems of the globe would be variants of the
Western system, whose specificities should disappear before
the irresistible advance of the latter on the planetary level... In
order that the Western system may win the planet, it would
[therefore] be necessary that the other societies consciously
abandon deeply rooted representations of the world, values,
social practices, cultural institutions and symbols’.

Could it have gone otherwise? One may seriously doubt it.

As François Flahaut writes, ‘If the Western world wishes to
convince the planet of the validity of human rights such as it
has conceived them, it should assume the anthropological and
theological presuppositions which support its formulations
(and notably the specific use of the term “rights” in the
expression “human rights”). If, on the other hand, it wishes to
avoid supporting itself on these presuppositions, then it should
recognise that the formulation that it has given of these
“rights” draws from its own tradition and has a universal value
only to the degree to which it appeals to a moral sentiment
shared by all men of good will’.

‘In a general way’, said

Raymond Aron, ‘one could pose the following dilemma:
either the rights attain a certain sort of universality because
they tolerate, thanks to the vagueness of the conceptual
formulation, no matter what institution; or they preserve some

precision and lose their value of universality’.

And, to

conclude: ‘The rights called universal merit this qualification
only on the condition of being formulated in a language so
vague that they lose all definite content’.

François de Smet summarises the same dilemma in these

terms: ‘Either we decide on a lax, empty international law that
is flexible at will since it respects the conceptions of all the
human cultures, and therefore probably ineffective; or we
assume a position according to which our culture, that of
individual rights, of the value of the individual vis-à-vis the
collectivity, is superior to the others, a superiority which is
often affirmed arbitrarily, for we assume such a moral
predominance thanks to our own premises’.

To contest the universality of the theory of rights does not,

however, mean that it is necessary to approve no matter what
political, cultural or social practice for the sole reason that it
exists. To recognise the free capacity of peoples and cultures
to give themselves, by and for themselves, laws that they wish
to adopt, or to conserve the customs and practices which are
theirs, does not automatically bring about their approval. The
freedom of judgment remains, it is only the conclusion that
one draws from it that can vary. The misuse that an individual
or a group makes of its freedom leads to the condemnation of
this use, not of this freedom.

It is thus not at all a question of adopting a relativist position

— which is an untenable position — but rather of a pluralist
position. There exists a plurality of cultures and these cultures

respond differently to the aspirations that are expressed
therein. Certain of these responses can rightly appear to us
contestable. It is perfectly normal to condemn them — and to
refuse to adopt them ourselves. One should admit also that a
society can evolve in a direction that we consider to be
preferable only from cultural realities and social practices that
are its own. These replies can also be seen to be contradictory.
One should then recognise that there does not exist any
overarching example from a superior, all-encompassing point
of view which would allow us to resolve these contradictions.

Raimundo Panikkar has, besides, shown very well that one

can find in all cultures without difficulty ‘anthropomorphic
equivalents’ of the concept of human rights, but that these
equivalents — in India the notion of dharma, in China the
notion of li (rite) — are neither ‘translations’ nor synonyms,
nor even antitheses, but only ways of replying to an
equivalent need proper to each culture.

When Joseph de Maistre,

in a passage that has often

been cited, says that he has met in his life all sorts of men, but
that he has never seen man himself, he does not deny the
existence of a human nature.

He only affirms tha t there

does not exist any example where this nature can be
apprehended in a pure state, independently of all particular
context: the fact of belonging to humanity is always mediated
by a culture or a collectivity. It would therefore be an error to
conclude from this that human nature does not exist: tha t the
objective reality is indissociable from a context or an
interpretation does not mean that it is reduced to this context,

that it is nothing other than this interpretation. ‘There exists a
r ig h t that is natural’, emphasises Eric Weil, ‘…but it is
different everywhere. Different everywhere: it is not the same
in a traditional community, in a political organisation of a
tyrannical type, in the state of a modern society. To conclude
from thi s that such a nature exists only among us would be
absurd, just as absurd as it would be to affirm that the problem
of a right that is natural has been, can have been, or should
have been posited everywhere’.

In Fragile humanité,

Myriam Revault d’Allones has

proposed an interesting phenomenology of the human fact,
not in the sense of a construction of others through the sphere
of subjectivity, but in a relational perspective which posits
above all the ‘significance of the human’ as a capacity for
exchanging experiences. Humanity, she says, is not a
functional category, but a ‘disposition to inhabit and to share
the world’.

One can draw from this the conclusion that

humanity does not yield itself as a unitary fact but on a basis
of common sharing.

Il Foglio, 23 December 2002.

‘La notion des droits de l’homme est-elle un concept occidental?’, in

Diogène, Paris, October-December 1982, p. 88. This text was
republished in La Revue du MAUSS, Paris, first quarter 1999, pp.
211-235.

Shortly following the French Revolution in 1789, the National

Assembly declared Jews to hold the same rights as French citizens,
making France the first European nation to do so. However, the Jews
were no longer recognised as a distinct community, but rather as just

one of several religions in France who should be subject to the same
laws and authorities as all other citizens. The quotation is from
Stanislas Marie Adélaïde,

comte

Clermont-Tonnerre

(1757-1792),

a French nobleman who became the spokesman for those nobles who
joined the Third Estate following the Revolution. He made this
statement in his ‘Speech on Religious Minorities and Questionable
Professions’, which he delivered in the National Assembly on 23
December 1789.-Ed.

On the difficult question of knowing how one can reconcile

individual rights with collective rights on the one hand with the
rights of the peoples to self-determination and the respect of the
cultural diversity of others on the other, cf. notably Les droits
culturels en tant que droits de l’homme (Paris: UNESCO, 1970); A. J.
M. Milne, Human Rights and Human Diversity: An Essay in the
Philosophy of Human Rights (London: Macmillan, 1986); Ludger
Kühnhardt, Die Universalität der Menschenrechte: Studie zur
ideengeschichtlichen Bestimmung eines politisches Schlüsselbegriffs
(Munich: Günter Olzog, 1987); Alison Dundes Renteln, International
Human Rights: Universalism versus Relativism (London-Newbury
Park: Sage, 1990); Wolfgang Schmale (ed.), Human Rights and
Cultural Diversity (Goldbach: Keip, 1993); and Eva Brems, Human
Rights: Universality and Diversity (The Hague: Martinus Nijhoff,
2001). Cf. also Adamantia Pollis and Peter Schwab, ‘Human Rights:
A Western Construct with Limited Applicability?’, in A. Pollis and
P. Schwab (eds.), Human Rights: Cultural and Ideological
Perspectives (New York: Praeger, 1980), pp. 1-18; and Axel
Honneth, ‘Is Universalism a Moral Trap? The Presuppositions and
Limits of a Politics of Human Rights’, in James Bohman and
Matthias Lutz-Bachmann (eds.), Perpetual Peace: Essays on Kant’s
Cosmopolitan Ideal (Cambridge, Massachusetts: MIT Press, 1997),
pp. 155-178.

After Virtue: A Study in Moral Theory (Notre Dame: University of

Notre Dame Press, 1981), pp. 69-70.

Cf. Georges H. Bousquet, Précis de droit musulman (Paris: Armand

Colin, 1963).

S. S. Rama Rao Pappu, ‘Human Rights and Human Obligations: An

East-West Perspective’, in Philosophy and Social Action,
November/December 1982, p. 24.

Cf. Chung-Shu Lo, ‘Human Rights in the Chinese Tradition’, in

UNESCO (ed.), Human Rights: Comments and Interpretations — A
Symposium (London: Allan Wingate, 1950); John C. H. Wu, ‘Chinese
Legal and Political Philosophy’, in Charles A. Moore (ed.), The
Chinese Mind (Honolulu: University of Hawaii Press, 1967); and
Joanne R. Bauer and Daniel A. Bell, The East Asian Challenge for
Human Rights (Cambridge: Cambridge University Press, 1999).

Cf. David Little, John Kelsay and Abulaziz Sachedina, Human

Rights and the Conflicts of Culture: Western and Islamic
Perspectives on Religious Liberty (Columbia: University of South
Carolina Press, 1988); and Ann Elizabeth Mayer, Islam and Human
Rights: Tradition and Politics, 3rd rev. edition (Boulder: Westview
Press, 1999).

Planetary Democracy: A Western Dream? (London: IKO, 2001), p.

9. In the Third World, adds Sophia Mappa, the rejection of
individualism illustrates the ‘preference in many societies for
polytheism and polygamy. The ideal, so dear to the West, of a single
god and a unique love is hardly shared elsewhere’ (ibid., p. 18).

One will note that female circumcision is not practised either in the

African population of the West Indies nor among the American
negroes. In the United States, sexual mutilations (circumcision) are
exclusively restricted to men.

The stoning of an adulterous woman is not a specifically Muslim

practice. In the past it was habitually practised in Israel (Leviticus
20:10; Deuteronomy 22:22-24), including during the epoch of Jesus
(John 8:3-6).

German: ‘community’. The German sociologist

Ferdinand Tönnies

first coined the term to designate a group in which the individuals
within it are more concerned with the good of the whole as opposed
to their own welfare, including in terms of values.-Ed.

Art. cit., p. 98.

Ibid., p. 100.

‘Ten Counter-Theses on New Class Ideology: Yet Another Reply to

Rich Johnstone’, in Telos 119, Spring 2001, p. 146.

Ibid., p. 150.

Claude Lévi-Strauss (1908-2009) is regarded as one of the most

important anthropologists of the Twentieth century. In his book Race
and History (Paris: UNESCO, 1952), p. 12, he wrote, ‘[T]he strength
and the weakness of the great declarations of human rights has
always been that, in proclaiming an ideal, they too often forget that
man grows to man’s estate surrounded, not by humanity in the
abstract, but by a traditional culture, where even the most
revolutionary changes leave whole sectors quite unaltered. Such
declarations can themselves be accounted for by the situation
existing at a particular moment in time and in particular space. Faced
with the two temptations of condemning things which are offensive
to him emotionally or of denying differences which are beyond his
intellectual grasp, modern man has launched out on countless lines of
philosophical and sociological speculation in a vain attempt to
achieve a compromise between these two contradictory poles, and to
account for the diversity of cultures while seeking, at the same time,

to eradicate what still shocks and offends him in that diversity.’-Ed.

Lewis Henry Morgan (1818-1881) was an American lawyer who

also conducted research into ethnology. He became fascinated with
the Native Americans and was initiated into the Iroquois tribe. In his
book Systems of Consanguinity and Affinity of the Human Family, he
compared his studies of the Native Americans with the tribal life of
other cultures, and developed his theory of the Unity of Origin of
Mankind, in which he believed he had identified the universal
primordial social structure of humanity. He also came to believe in
the necessity for continual progress in societies in order for them to
survive, which he identified in modern times with technological
progress, as described in his Ancient Society. Marx and Engels were
heavily reliant on Morgan’s work when discussing tribal societies
and social progress in their own theories.-Ed.

Leilo Basso (1903-1978) was an Italian lawyer and a socialist

politician who opposed the Fascists. During the 1960s he participated
in the Russell Tribunal, founded by the philosopher Bertrand Russell,
to examine American war crimes in Vietnam. During the 1970s he
also investigated abuses by Latin American regimes and established
several

organisations

which

supported

national

liberation

movements.-Ed.

Cited by Edmond Jouve, Le droit des peuples (Paris: PUF, 1986), p.

A ‘Green’ Declaration of Human Rights, patronised by Colonel al-

Qadhafi, was likewise adopted in Libya on 14 May 1977. An African
Charter of Human Rights and Peoples’ Rights was adopted on 28
June 1981 at the Nairobi summit of the Organisation of African
Unity. A Universal Islamic Declaration of Human Rights was
proclaimed some months later, on 19 September 1981, in the offices
of UNESCO. It is founded on the Qur’an and notably affirms the

right to religious freedom (Article 13).

‘Anthropologie juridique: aux confins du droit’, in Sciences

humaines, May 1992, p. 33.

The question of the right of peoples to self-determination comes up

against a classical difficulty: the definition of the people in
international law and its legal distinction in relation to the state,
indispensable if one wishes to defend the rights of minorities. Cf. on
this subject Alain Fenet (ed.), Droits de l’homme, droits des peuples
(Paris: PUF, 1982).

Op. cit., p. 108.

Jacques Julliard has gone so far as to write that ‘the rights of

peoples to self-determination has become the principal instrument of
the strangling of human rights’ (Le Tiers-monde et la gauche [Paris:
Seuil, 1979], p. 38). The right to difference is equally condemned by
a determined partisan of acculturation, Sélim Abou, who, in Culture
et droits de l’homme (Paris: Hachette-Pluriel, 1992), violently attacks
Lévi-Strauss. The same author assures us that ‘human rights find
their foundation in the rational nature of man, insofar as reason is the
demand of freedom for oneself and for others and that this demand
constitutes a natural inalienable right’ (p. 75).

‘Droits de l’homme’, in L’Express, 30 September 1988, p. 55.

Le Monde, 30 November 1993, p. 2.

‘Power, Principles and Human Rights’, in The National Interest,

Summer 2002, p. 117.

Cf. for example Michael J. Perry, ‘Are Human Rights Universal?

The Relativist Challenge and Related Matters’, in Human Rights
Quarterly, August 1997, pp. 461-509.

Univocity is that which speaks with one voice. In philosophy, it

implies a concept, such as goodness, which is the same everywhere,
and varies only in terms of degree.-Ed.

Art. cit., pp. 94-96.

Adamantia Pollis and Peter Schwab, art. cit.

‘Pensée sociologique et droits de l’homme’, in Etudes politiques

(Paris: Gallimard, 1972), p. 232.

Johann Gottfried Herder (1744-1803) was a German philosopher

who emphasised the importance of linguistic and geographical
differences giving rise to unique identities among nations, thus
stressing subjectivity over universality in history.-Ed.

Friedrich Carl von Savigny (1779-1861) was a German jurist who

believed that law is something that can only be derived from the
specific culture and history of a nation, and not something that can be
universally applied to all nations, as was held by the French jurists of
his day.-Ed.

Sir Henry Sumner Maine (1822-1888) was an English jurist and

historian. Initially a student of ancient Roman law, he compared the
Roman concept of the individual as someone whose identity was
bound to his identity in specific traditional groups to the modern
concept of the autonomous individual. After spending many years in
India, Maine concluded that there is no single system of law that can
be universally applied, and also that democracy was not inherently
superior to other political systems.-Ed.

Hannah Arendt (1906-1975) was a German-Jewish political theorist

who studied with Martin Heidegger. She fled the Nazis and lived for
most of the remainder of her life in the United States, becoming one
of the most influential political philosophers of the Twentieth

century.-Ed.

Op. cit., p. 68.

Ibid., p. 70.

Hubert Védrine (b. 1947) was the Foreign Minister in Prime

Minister Jospin’s Socialist administration between 1997 and 2002.
Védrine is well-known for his opposition to American hegemony and
popularised the term ‘hyperpower’ to describe America’s position in
world affairs.-Ed.

‘Refonder la politique étrangère française’, in Le Monde

diplomatique, December 2000, p. 3.

Art. cit., p. 97.

The View from Afar (New York: Basic Books, 1985), p. 285.

‘I do not adopt without reserve the French ideology of “right of

interference”’, said Hubert Védrine as well. ‘First, because it
resembles too much indeed the “duty of civilisation” of the French
colonialists of the Nineteenth century and the White man’s burden of
Rudyard Kipling’ (art. cit., p. 3).

Les droits de l’homme et le nouvel occidentalisme, special issue of

L’Homme et la société, Paris, 1987, 3-4, p. 7. Cf. also Rino Genovese,
La tribù occidentale (Turin: Bollati Boringhieri, 1995).

Op. cit., pp. 9-10.

Le sentiment d’exister: Ce soi qui ne va pas de soi (Paris: Descartes

et Cie, 2002), pp. 454-455.

Op. cit., p. 228.

Ibid., p. 232.

Les droits de l’homme: Origines et aléas d’une idéologie moderne

(Paris: Cerf, 2001), p. 140.

Joseph de Maistre (1753-1821) was a French Counter-

Enlightenment philosopher who fled the Revolution and lived the
remainder of his life in Italy. He always remained a staunch opponent
of democracy and supported monarchical rule.-Ed.

‘During my life, I have seen Frenchmen, Italians, Russians, and so

on; thanks to Montesquieu, I even know that one can be Persian; but
I must say, as for man, I have never come across him anywhere.’
From Marc A. Goldstein, Social and Political Thought of the French
Revolution, 1788-1797 (New York: Peter Lang, 1997), p. 820.-Ed.

‘Du droit naturel’, in Essais et conférences (Paris: Plon, 1970), p.

193.

Paris: Aubier, 2002.

Ibid., p. 37.

4. BEYOND HUMAN RIGHTS: POLITICS,

FREEDOM, DEMOCRACY

From Augustin Cochin

to Joseph de Maistre, from Edmund

Burke

to Karl Marx, from Hannah Arendt to Michel Villey,

the majority of the critiques of the ideology of human rights
have denounced its universalism and abstract egalitarianism.
They have equally called attention to the fact that, in depriving
all concrete characteristics from man, whose rights they
proclaim,

of this

ideology, they have risked ending in

levelling and uniformisation. If one admits that the affirmation
of human rights essentially aims at guaranteeing the autonomy
of individuals, one understands at the same time that there is a
contradiction there.

The abstraction of human rights is what threatens most to

render them inoperative. The principal reason for this is that it
is contradictory to affirm, at the same time, the absolute value
of the individual and the equality of individuals in the sense of
a fundamental identity. If all men are equal, if they are all
fundamentally the same, if they are all ‘men like others’, far
from the unique personality of each of them being able to be
recognised, they will appear, not as irreplaceable, but on the
contrary as interchangeable. Not being different from one
another by their particular qualities, only their more or less
great number will make a difference. Abstract equivalence, in
other words, necessarily contradicts the proclamation of the
absolute individuality of the subjects: no man can be at the
same time ‘unique’ and basically identical to every other.

Inversely, one cannot affirm the unique value of an individual
even while considering his personal characteristics as
indifferent, that is to say, without specifying what makes him
different from the others. A world where all are equal is not a
world where ‘nothing is worth a life’

but a world where a

life is worth nothing.

This problem had been glimpsed by Alexis de

Tocqueville,

who related the rise in the value of equality to

the risk of uniformisation at the core of social life.

It has

been repeated more recently by Hannah Arendt, who shows
that to posit man as a pure abstraction is to increase his
vulnerability. ‘The conception of human rights, based upon
the assumed existence of a human being as such, broke down
at the very moment when those who professed to believe in it
were for the first time confronted with people who had indeed
lost all other qualities and specific relationships — except that
they were still human. The world found nothing sacred in the
abstract nakedness of being human’.

Summarising the thesis of Hannah Arendt, André Clair

underlines the ‘relation between the affirmation of abstract
universal rights and the failure of human rights in ensuring the
most elementary respect for human beings as persons.
Precisely what the doctrine of human rights fails to recognise,
with its thesis of abstract equality, is that there are no effective
rights without a recognition of the differences between beings.
That is the point of the thesis: human rights can only be rights
of individuality... Of course, there follows a relativity of rights
linked to their efficiency, that of a historical community. But

much more than that, it is a question of a metaphysical thesis,
that of ontological difference: the law does not have its
principle in man, not even in a fundamental universal
subjectivity, but it is an element of the world; it is the
ontological difference, unrecognised by the affirmation of
abstract equality, that alone gives its full significance to human
rights, in recognising first a superiority in a world already
constituted of meanings... It is not at all a question of an
absolute right of everybody to difference, but of recognising
that only rights rooted in traditions and community
experiences have efficacy’.

It is only too easy to recall here that the same that has

affirmed the rights of individuals most strongly is also that
which, in fact, has put in place the most weighty mechanisms
of collective heteronomy. The two phenomena, one knows
today, had to go together, even if that were only because the
state alone, having rapidly become a welfare state, was able to
attenuate the destructive effects of the rise in individualism on
the social fabric. Now, the intervention of the state in all fields
contradicts the autonomy of wills that is considered to be the
basis of the responsibility of the subjects of the law.

‘The emancipation of individuals from the primordial

restraint which committed them to a community which it is
claimed preceded them as regards its ordering principle, and
which profited from very effective hierarchical links between
man and man’, observes Marcel Gauchet, ‘far from entailing a
reduction of the role of authority, as common sense would
suggest through simple deduction, has constantly contributed

to enlarge it. The undeniable latitude acquired by individual
agents at all levels has not at all prevented, but on the contrary,
has regularly favoured the constitution, above and beyond the
sphere of civil autonomy, of an administrative apparatus
taking over more and more broadly and minutely the
collective direction... The deeper the laws of men enter into
the definition of their society, the more the organisational
dominance of the bureaucratic state, under cover of permitting
their participation in it, robs them, in fact, of this faculty’.

What remains then, today, of the ‘reign of human rights’? In
contemporary life, the question of foundations is, for all
intents and purposes, no longer posed. Our contemporaries no
longer base these rights on human nature, since the time they
have known that no ‘state of nature’ ever preceded life in
society, and especially since the time they learned that
‘nature’, insofar as it has something to tell us, goes in a very
different direction from that of the ideology of rights. But, for
all that, they have not become Kantian. They seek rather to
conserve the notion of ‘dignity’ even while detaching it from
all notion of a moral law. ‘To respect the dignity of another
human being’, observes Pierre Manent, ‘is no longer to
respect the respect which he conserves in himself for the
moral law; it is today, more and more, to respect the choice
that he has made, whatever this choice may be, in the
realisation of his rights’.

The present tendency, more precisely, consists in converting

all sorts of demands, desires or interests into ‘rights’.
Individuals, in the extreme case, would have the ‘right’ to see

no matter what demand satisfied, for the sole reason that they
can formulate them. Today, to claim rights is only a way of
seeking to maximise one’s interest. The future of the
consumer of rights thus converges with the economic ideal of
man solely preoccupied with augmenting his utility. ‘The
Homo oeconomicus in search of his interest’, remarks Guy
Roustang, ‘has his homologue in the world of politics: the
individual who is defined by his rights’.

That is why the

citizen has increasingly more difficulty in finding his place in
a society that is politically conceived on the model of a self-
regulated market. Reduced to a simple catalogue of desires
posed as so many needs, rights thus continually proliferate
without any longer encumbering themselves with a true raison
d’être. This inflation of rights corresponds to what Michael J.
Sandel has called the ‘procedural republic’,

and to the

consecration of the idol of the ‘dependent individualist’ (Fred
Siegel).

Is one then still in a society which ‘respects human rights’ or

in a society which has decided to legitimise all the forms of
desire, to ‘recognise’ all the choices of life, all the contents of
existence, all the preferences and all the orientations, provided
that these do not interfere too much with those of one’s
neighbours? Does recognising human rights lead to
considering all tendencies as legitimate?

In any case, the banalisation of rights brings about their

devaluation. ‘This pluralism without limits’, writes Simone
Goyard-Fabre, ‘engenders a tragic dereliction: a legal
dereliction, since the concept of right is dissolved in the

uncontrolled movement of demands without end; an
ontological dereliction, for the fact that the human being
declines his personal responsibility in order to gain the
advantage of a responsibility claimed to be collective
engenders irresponsibility...; an axiological dereliction, for the
total permissiveness which is at the horizon of the delirious
overproduction of rights contains the beginnings of a passage
to extremes where immoderation and excess bear forces
similar to those of a nihilist flood’.

Another result, directly related to the affirmation of the

individual and his rights, is the extraordinary rise in power of
the legal sphere, henceforth perceived as capable of regulating
political life and of pacifying social life by itself. Tocqueville
said that, in the United States, there is hardly a political
question that does not end by turning itself sooner or later into
a legal question. This situation has slowly extended to all the
Western countries, where the powers of the judges do not
cease expand and where social relations are increasingly
determined in terms of rights. ‘As a result, the realm of
politics becomes merely the terrain where individuals ...
understood as rational agents in search of self-advantage —
within the constraints of morality, of course — submit to
procedures for adjudicating between their claims that they
consider “fair”.’

The problem is that the declarations of rights, to the extent

that they wish to encompass everything, are inevitably vaguer
than the national laws. The difficulty, then, is to translate them
into a positive right, without reducing the consensus of which

they are the object. This is the source of paradox, well raised
by Pierre Manent: ‘In the future, if one depends principally
upon human rights to render justice, the ‘manner of judging’
will be irreparable. Arbitrariness, that is to say precisely what
our regimes wanted to defend themselves against in instituting
the authority of constitutionality, will then go on increasing,
and will paradoxically become the work of the judges. Now, a
power which discovers that it can act arbitrarily will not delay
in using and abusing this latitude. It tends towards
despotism’.

The international law issued by the Peace of Westphalia

(1648)

is today equally turned upside down by the

ideology of human rights, which justifies the right (or the
duty) of ‘humanitarian interference’, that is to say, preventive
war, formerly seen as nearly identical to a war of aggression.
This right of humanitarian interference, which patently
violates the Charter of the United Nations, has no precedent in
international law.

It suggests that every state, whatever it

be, can intervene at will in the internal affairs of another state,
whatever it be, under the pretext of preventing ‘attacks on
human rights’. Justifying politico-military intervention, which
decolonisation had theoretically put to an end, it permits a
group of countries or authorities professing to act in the name
of a nebulous ‘international community’ to impose their
viewpoint everywhere without taking into account either
cultural preferences or political and social practices accepted
or ratified democratically. One immediately sees the risks of
deviation related to such a doctrine, which quite simply opens

the gate to wars without end, the jus ad bellum replacing the
jus in bello.

The idea of a justice being exercised beyond one’s borders

can certainly seduce. It is necessary to see, however, that it
comes up against insurmountable obstacles. The law cannot,
in fact, float above politics. It can be exercised only within a
political community or result from the decision of several
political units to ally themselves to one another in a way which
suits them. That means that, as long as there is no world
government, the right of humanitarian interference can only
be a caricature of a right.

All justice needs a political power which serves it at least

with executive force. In the absence of a world government,
the power called to play the role of the planetary police can
only be that of armed forces so strong that nobody can resist
them. As the armies are always at the service of particular
states, that therefore leads to sanctioning the hegemony of
superpowers, of which it would be naïve to believe that they
would not seek to serve their own interests first of all by
covering their aggressions with a cloak of morality and justice.
It follows from this that, among those presumed guilty, only
the weak will be able to be punished while the powerful, who
cannot be brought to punish themselves, will not be
disturbed.

Now, a justice which is not the same for all

does not deserve this name.

Recalling the saying of

Proudhon,

‘[W]hoever invokes humanity wants to

cheat’,

Carl Schmitt had already remarked tha t ‘[t]he

concept of humanity is an especially useful ideological

instrument of imperialist expansion, and in its ethical-
humanitarian form it is a specific vehicle of economic
imperialism’.

In any event, humanity is not a political

concept. A ‘world politics of human rights’ is, therefore,
equally a contradiction in terms.

The idea that in politics good can only engender good

ignores what Max Weber

called the paradox of

consequences. Historical experience shows tha t the best
intentions can have catastrophic effects. It also shows that the
right of interference never resolves any problem but tends, on
the contrary, to multiply them, as one has been able to see in
Kosovo, in Afghanistan or in Iraq. Democracy and freedoms
are not imposed from outside, especially in one moment. Their
establishment can only result from a local evolution, not from
a forced conversion. Furthermore, the political authorities
attacked or crushed as a result of the discussion of human
rights do not disappear to the advantage of a pacified and
more just world, but to the advantage of economic and
financial institutions, which create social inequalities and
tensions, exercised still more arbitrarily by multinational
enterprises and financial markets. ‘The ideology of human
rights’, affirms Alain Bertho, ‘calls less for the liberation of
peoples than for the police of the states’.

Hardly had the

French Revolution proclaimed human rights than, to render
them more effective, it instituted the Terror.

From 1792 to

1801, it was in the name of ‘freedom’ that France was
engaged in a politics of occupation, annexations and
conquests. The right of humanitarian interference is equally

belligerent. ‘It is not excluded that, just as men make war “for
a better peace”’, wrote Julien Freund, ‘it may happen that one
d a y they may fight in the name of conceptions equally
estimable concerning human rights’.

We are, quite

precisely, there already. Bernard Kouchner

who, not so

long ago, flattered himself that he ‘found himself always on
the side of those who receive the bombs and not of those who
thr o w them’, declares today, ‘A preventive war is a notion
which seems to me not only just, but which approximates to
what, with others, we have proposed as a duty, and then a
right, of interference’.

But the right of interference does

not justify preventive war alone. By endowing the wars that it
provokes with a moral character, by presenting them as ‘just
wars’, it ends by criminalising the enemy, in making him a
symbol of Evil: one who makes war in the name of humanity
can only place his adversaries outside humanity. By definition,
‘just war’ is a total war.

One knows that the doctrine of human rights, defining rights
as attributes inherent in human nature, posits the individual as
self-sufficient. ‘The basic rights in the actual sense’,
emphasises Carl Schmitt, ‘are essentially rights of the free
individual person’.

It is, besides, because human rights

are the attributes of an isolated individual and of a disengaged
subject who is independent in relation to those like him, for he
is considered as one who finds in himself his essential raisons
d’être, rather than such reasons being posited as the antithesis
of duties that would be symmetrical to them. This

individualism was originally so marked that the Declaration of
1789 ignores the freedom of association, and more generally
all forms of collective rights, its authors condemning besides
(the Le Chapelier Law, the Allarde decree)

all the

basically professional groupings. Collective rights are
recognised today, but human rights are still rights whose
realisation is considered, in the final analysis, to concern the
individual alone, even when certain of these rights can be
realised only collectively.

‘Modern humanism is an abstract subjectivism’, writes Jean-

Louis Vullierme. ‘It imagines men as preconstituted
individuals, substances that are universally bearers of the same
attributes, apt to legitimate the same demands in all
circumstances according to formal rules deducible from a
unique rationality’.

This individualism or atomism

evidently implies contractualism: in the beginning, as soon as
there are only isolated individuals, one can explain the
formation of societies only by contract, a legal procedure
characteristic of civil law: before the market, only this can get
round the great difficulty that there is in founding the
legitimacy of a society on the principle of the independence of
the individual, that is to say, on ‘the principle of the most
asocial being that there is’.

However, in the doctrine of

human rights, the social contract does not change the nature of
the individuals. The society remains a simple sum of
individual atoms with sovereign wills, all equally moved by
the rational search for their best interest. Each agent defines
his objectives by himself, in a voluntary manner, and adheres

to society only on an instrumental basis. In other words, only
the individual really exists, while society or the collectivity is
only an abstraction, an illusion or a superimposed reality.

For theoreticians of rights, politics thus has nothing natural.

In relation to the state of nature, it constitutes an artificial or
imposed superstructure. This superstructure, in order to be
legitimate, must be at the service of the individual and give up
defining itself as an action taken by a collective being: ‘The
aim of every political association’, one reads in Article 2 of
the Declaration of 1789, ‘is the conservation of the natural and
inalienable rights of man’. At the core of society, man is thus
not defined straightaway as a citizen, but first as a member of
the ‘civil society’ (or private sphere), the latter itself being
defined as the part of society which can rightly be subtracted
from the political life (or public sphere). That is indeed why
the theory of human rights gives priority to the private rights
of individuals. As Marcel Gauchet writes, ‘It is not a question
of any version of human rights, but of a version defined
exactly, which consists which involves exploiting the
inherence of the rights in the individual against the
associations of the citizen’.

In the beginning, the theory of human rights seemed to be

raised only against a particular political form — in the case of
despotism. But, in fact, its critique is deployed against every
form of politics. The key idea is that of an opposition of
principle, always latent, between the individual and the
community or collectivity to which he belongs. The individual
would always be threatened by what is outside his individual

being, in such a way that it is only by affirming his
prerogatives as an individual that he can guard against this
threat. According to this view, neither the society, nor the
family, nor the public powers, nor the social relations, nor
even the culture are perceived as being able to constitute a
protection as well. This is the origin of the necessity of
guaranteeing to individual actions an inviolable and ‘sacred’
sphere.

It is thus not no exaggeration to say that the proclamation of

these rights assumes, from the start, an anti-political sense. As
Carl Schmitt remarks, it signifies that ‘the liberty sphere of the
individual is unlimited in principle, while the powers of the
state are limited in principle.’

Concomitantly, the theory of

human rights creates a radical novelty: a freedom independent
of all participation in political affairs, a freedom of the
individual separated from the freedom of the political
community to which he belongs, an idea which in Antiquity
would have been considered ‘absurd, immoral and unworthy
of a free man.’

(Carl Schmitt). Finally, if rights are

unlimited in principle, the duties themselves can only be
limited — both because, being linked to social life, they
cannot be the opposite of rights inherent in human nature, and
because it would be contradictory, from the point of view of
the theory of rights, to imagine unlimited duties towards
entities conceived as potentially menacing for the individual.
In this perspective, certain questions are deliberately left aside,
for example the question of knowing if and in what
circumstances a collectivity can have rights in relation to the

individuals that constitute it. In the best case, every restriction
of rights by a political power can only possess the status of an
exception.

A good illustration of the way in which the affirmation of

the sovereignty of the individual necessarily antagonises the
political organisation of a society is furnished by the way in
which the French Revolution tried to reconcile human rights
and those of the citizen — a question which, in many respects,
resembles the old problem of the union of the soul and the
body. Article 2 of the Declaration of 1791 affirms that the
rights of the citizen have as their exclusive aim the
conservation of human rights. This affirmation is repeated in
Article 1 of the Declaration of 1793. Thereby, the
Revolutionary right aims, quite evidently, to reconcile the
subjective right and the objective right, the natural right and
the positive right, to ensure the union of citizenship and one’s
membership in humanity. However, during the Revolution,
‘natural’ man is not really comprehensible except under the
genre of citizen. One of the reasons for this is probably that
the Revolutionary power succeeded an already existing state
power, while the American declarations of rights aimed, in a
totally different context, at fabricating a new political
entity.

Rousseau, for his part, had already declared that he

was for the primacy of the citizen in a famous page: ‘We must
therefore choose whether we will make a man or a citizen; we
cannot do both.’

The authors of the Revolutionary texts

themselves adhere to a civic-oriented conception of rights
which goes together with a strong legalism, and this tendency

is further reinforced by their desire to define the rights of the
nation as a priority. In effect, the consecration of the
sovereignty of the nation rapidly dominated that of the
universal rights of the individual. ‘The nation’, writes Mona
Ozouf, ‘is not thought of as constituted of free and equal
individuals, but endowed, from the very first days of the
Revolution, with an absolute priority’.

The definition of

man as a natural subject who needs to become the object of a
positive legislation in order to be recognised as a subject of the
law has thus sanctioned the primacy of the rights of the citizen
— which permitted the Revolutionary power to legitimate the
political recruitment of individuals.

Examining the definition of human rights and the rights of

the citizen in the Declaration of 1789 from the theoretical
angle, Karl Marx remarks for his part that, in liberal and
bourgeois law, the joint development of these two spheres is
rhetorically possible, but practically contradictory, insofar as it
cuts man into two and assigns to him, within each sphere,
aims that cannot be reconciled or even united.

Just as he sees very well that behind the right to work there

is first the power of capital, Marx also sees that with the
abstract generalisation of ‘man’, whose rights are proclaimed,
the play of private interests is above all affirmed. That is why
he denounces the formalism of human rights and their
manipulation to the advantage of the propertied class which is
alone capable of determining, by its laws, within what limits
the freedom of every person should be exercised. The rights
are considered as being valid for all, but in fact they are

essentially reserved for the bourgeoisie. ‘Thus none of the so-
called rights of men’, writes Marx, ‘goes beyond the egoistic
man, the man withdrawn into himself, his private interest and
his private choice, and separated from the community as a
member of civil society.’

To affirm that the end of all

political association is the conservation of human rights, to
make the rights of the citizen a ‘simple means of conserving
these professed human rights’ comes down from that moment
to placing the citizen at the service of the selfish man: ‘[M]an
as bourgeois rather than man as citizen is considered to be the
proper and authentic man… Actual man is recognized only in
the form of an egoistic individual, authentic man, only in the
form of abstract citizen.’

Marx’s thesis has been explicitly

criticised by Claude Lefort, who affirms that it is, on the
contrary, the abstraction of human rights, their ahistorical and
formal character, that constitutes their value and guarantees the
possibility of having recourse to them in no matter what
situation. It is precisely, says Lefort, because human rights are
those of a man without determination that they can correspond
to their definition: ‘Human rights lead the law to a foundation
which, in spite of its denomination, is shapeless, exists as it
were within itself, and in this, eludes every power which
intends to seize it’.

But Lefort does not explain how such

rights, which no ‘power’ can seize, could be guaranteed and
applied outside a political order, itself implying a power. This
poses the more general problem of the implementation of the
rights. Human rights derive in effect from the modern natural
right, not from positive right. Now, as opposed to the latter,

natural right does not by itself have at its disposal any means
of restraint. It is a ‘disarmed’ right, and the modern natural
right is still more so than the ancient one to the extent that it
does not recognise the social nature of man. Rights conceived
as inalienable attributes of the subject, that is to say, rights that
every man is justified in demanding that they be respected for
the sole reason that he is a man, do not possess ‘by themselves
and in themselves either legal importance or significance’
(Simone Goyard-Fabre). In order that they may acquire it,
they should be sanctioned by rules of positive law, which can
be conceived only within a society. Only positive law can say,
in fact, whom such rights should benefit, who is harmed by a
failure to apply them and in what, etc. In other words,
subjective rights, posed as external to all social fact, can
acquire an effective consistency only in a social context. That
is an initial paradox. Régis Debray summarises it in these
terms: ‘One who wishes to be a mere individual to enjoy a
fullness of freedom forgets that there are no human rights
without the legal form of the state’.

A second paradox results from the difficulty that there is in

claiming that human rights can predominate over positive
right in such a way that every political power should begin by
recognising them, even while admitting that the practical
validity of these rights depends on the capacity of this same
political power to apply them. Bentham had already
stigmatised this contradiction of contractualism, which
consists in basing the rights of the citizen on human rights
when the latter can have an effective existence only from the

former. ‘On the one hand’, observes Julien Freund, ‘one
demands the respect of these rights for the same reason that
one respects the dispositions of positive law, but, on the other,
makes it known, with more or less perspicacity, that the
validity of these rights should not depend on ordinary
legislative examples since they aim at universality’.

Still

more generally, that poses the question of the relations
between politics and the law. The ideology of human rights,
we have seen, posits the anteriority of natural law in relation to
society and draws the argument from that to limit the
prerogatives of politics. Now the law, being impotent by itself,
always supposes something outside of itself to exercise itself.
As Marcel Gauchet writes, ‘the point of view of the law does
not allow one to take account of the context in which the law
may rule. It is here that one should pass to the political point
of view. It is demanded by the extent of the limits to the ideas
of a foundation in law’.

The tension between human rights and those of the citizen,

that is to say of man considered as a member of a particular
political community, appears again in the discussions that have
surrounded the arrival of ‘the rights of the second generation’,
that is to say of collective or social rights.

These rights of the second generation (right to work, right to

education, right to medical care, etc.) are of a completely
different nature than individual rights. Sometimes qualified as
‘equality rights’ compared to ‘freedom rights’, as ‘rights to’
compared to ‘rights of’, or again of ‘rights of recipience’
compared to ‘rights of action’,

they represent, above all,

beliefs permitting members of a society to demand or obtain
positive services from the state. These are not so much natural
attributes as attributions that a particular society which has
reached a certain moment in its history thinks to be able to and
be obliged to give its members. Not only do they ‘presuppose
an organised civil society which will be the guarantee of their
efficacy’

but to the extent that they even support

themselves on the notion of solidarity, they imply the social
phenomenon and cannot be deduced from the pre-political
nature of the individual. Finally, contrary to the rights of the
first generation, which are unlimited in principle (one cannot
restrain them without harming what they are based on), they
are, on the contrary, limited, for every belief vis-à-vis others is
limited by the executive capacities and the means of the others.

While the theory of individual rights tends to limit the power

and the authority of the state, the institution of collective rights
makes of the latter the privileged instrument of their
implementation. The state is no longer expected to abstain,
restrain itself or disengage itself, but, on the contrary, to
implicate itself, to become engaged, indeed to establish itself
as the exclusive provider of an ever-increasing number of
services. ‘The recognition of social rights having the character
of “beliefs”’, writes Jean-François Kervégan, ‘implies that
sufficient power over the members of the city shall be
conferred and recognised for it to be able to guarantee them
the enjoyment of these rights, in spite of the possible
opposition of particular interests among them and of some of
these with regard to measures capable of harming them’.

Such indeed is the reason for the hostility of liberal milieus

to collective rights, which they qualify in the best of cases as
‘fine ideals’,

that is to say as pious wishes without real

justification. If certain of these rights are reducible to
individual cases, others, in fact, cannot be distributed: they
have as debtors not individuals but collectivities. The right to
speak one’s language, for example, is inseparable from the
right to the existence of the group which uses this language,
and this second right conditions the first. Now, liberal
individualism rejects the very idea that a collectivity can
imagine itself attributing individual traits, in the case of rights,
and postulates that the value of a possession depends on its
conformity with the principle of the respect that one owes to
the individual alone. That is why Hayek

violently

denounces social rights, insofar as they derive from a
distributive justice: ‘[A]ny policy aiming directly at a
substantive ideal of distributive justice must lead to the
destruction of the Rule of Law’.

It would therefore be useless to deny, as Claude Lefort

does,

the depth of the ‘generation gap’ separating

individual rights from collective rights. Between the one and
the other there is a difference of kind, not a difference of
degree. This difference of kind goes well beyond the classical
antinomy between equality, assimilated to justice, and
freedom.

On the one hand, individual rights can cause an

obstruction to the realisation of collective rights, unless the
reverse is true (that is why liberals and socialists mutually
accuse each other of violating the former in the name of the

latter, or the latter in the name of the former). On the other
hand, a number of public or social goods are not divisible,
which means that they have a significance only in a holistic
understanding of social action. The institution of collective
rights implies the recognition of the importance of the notion
of belonging, and leads to the division of the subjects of right
into groups, which is what the classical theory of human rights
has always refused to do. The liberals draw an argument from
these with which to criticise social rights. One could rightly
draw the opposite conclusion from it: social rights, from the
sole fact that they are social, are more credible than those
drawn from an abstract individual ‘nature’, especially when
they allow one to restore the notion of distributive justice to
honour.

In public opinion, the fight for human rights is frequently
presented as an aspect of the fight for democracy. ‘The
complete democratisation of Europe’, declared Javier Pérez de
Cuéllar in 1990, then Secretary-General of the United Nations,
‘will be a reaffirmation of the universal character of the
Declaration of Human Rights’. The same opinion has been
expressed since then by Francis Fukuyama and by many other
authors. In this perspective, democracy and human rights are
considered to progress in tandem. The two expressions cannot
contradict each other. They even become almost synonyms.

Regardless, this opinion has not been any less contested on

several occasions. Examining the relation between democracy

and human rights, Julien Freund said that it ‘is not evident’.
Their equation, writes Jean-François Kervégan, is at least
‘problematic’.

Myriam Revault d’Allones adds that it

‘does not go without saying’.

There are several reasons

for this.

A primary reason is that democracy is a political doctrine,

while human rights is a legal and moral doctrine, and that
these two types of doctrines do not accord with each other
spontaneously. As a political regime, democracy tends quite
naturally to restrain that which is not democratic, and, more
generally, that which is not political. The theory of human
rights, on the contrary, tends to restrain the prerogatives of
politics. But above all, as one has seen with regard to human
rights and the rights of the citizen, the one and the other do
not have the same subject. The ideology of human rights can
only recognise abstract individuals, while democracy knows
only citizens. Now, even if they use the same legal rhetoric,
the rights of the citizen (equality before the law, freedom of
petition, equal right of suffrage and vote, equal access to
public jobs according to capacity, etc.) are fundamentally
different from human rights. They are not attributes of man as
man, but capacities related, not only to a particular political
regime (democracy), but also, and especially, to a specific
membership (a given political community). The theory of
human rights gives the right to vote indiscriminately to all men
insofar as they are men (‘one man, one vote’). Democracy
gives the right to vote to all the citizens but refuses it to non-
citizens. ‘The democratic rights of state citizenship’, writes

Carl Schmitt, ‘presuppose the state citizen, the citoyen, living
in the state, not individual free persons in the extra-state
condition of “freedom”. This means these democratic rights
have an essentially political character’.

A democratic regime, on the other hand, draws its

legitimacy from the consent of the people, the latter being
generally expressed by votes. In the final analysis, democracy
is the regime which sanctions the sovereignty of the people.
On the contrary, the discourse concerning human rights is
given straightaway as a moral certainty, as a universal truth,
considered to impose itself everywhere by the fact of its
universality alone. Its value does not thus depend on a
democratic ratification. Better still, it can oppose it.

‘The problem of human rights’, observes Revault

d’Allonnes, ‘arises from an individual foundation — the
problem of the natural rights of the individual — which
inevitably enters into conflict with the requisites of
sovereignty’.

This tension can assume two aspects. On the

one hand, to the extent to which international law inspired by
the theory of human rights — the right of interference —
implies a limitation of the sovereignty of the state and of
peoples, it also implies, in the heart of every democratic state,
a limitation of popular sovereignty. On the other hand, the
conditions under which the theory of human rights has been
enunciated result in the suffrage itself no longer being
recognised as sovereign except insofar as it does not
contradict the postulates of this theory. From the perspective
of human rights, explains Guy Haarscher, ‘the democratic

principle can be valid only within strict limits, which are
precisely those of the philosophy of human rights: supposing
that a single individual defends these latter against a majority
opinion determined to violate them, it is this single person
who, from the point of view of the contractualistic
philosophy, [will have] adopted the sole legitimate
attitude’.

Since democratic votes do not go in the direction of human

rights, they are therefore immediately rejected as ‘irrational’
and illegitimate. The same ideology is opposed to the people
being consulted, for example by way of a referendum, on
subjects considered as too ‘sensitive’. A certain denunciation
of ‘populism’ enters quite evidently into this context: when
one broaches the question of ‘human rights’, the people are
too often suspected of thinking badly.

‘The recognition and the proclamation of human rights’,

further writes Jean-François Kervégan, ‘implies that
insurmountable limits are posed to sovereignty, whether it be
monarchical or popular’.

Now, every limitation of

popular sovereignty represents an attack against the very
foundation of democracy. It is equivalent to an obligation
made to the citizens to give up being governed by anyone
except the leaders whom they have elected. It implies that the
ultimate authority to which the citizens owe obedience is no
longer that of their elected leaders, but that of international
authorities or jurisdictions whose members, speaking, as it
were, in the name of a revealed truth, do not have the least
democratic legitimacy. Once the popular sovereignty is placed

under certain conditions, it is a clear return to political and
social heteronomy.

It is significant that today, one reproaches authoritarian

governments much less for lacking democratic principles than
for not ‘respecting human rights’. To palliate the political
instability that hinders the planetary expansion of the markets,
the Trilateral Commission,

established in 1973, and whose

two principal theoreticians were Samuel Huntington

and

Zbigniew Brzezinski,

had already expressed the wish to

restrain the field of democratic practices in the countries of the
Third World. ‘To reply to these two demands — restrained
democracy and the survival of capitalism’, writes Edmond
Jouve, ‘an ingredient has been found: the ideology of human
rights’.

The redefinition of democracy as the ‘regime that respects

human rights’ — that is to say, finally, its reduction to liberal
democracy, is thus intellectually untenable.

but it is

politically very profitable since it allows one to reject as
contradictory every democratic decision going against the
ideology of human rights. Jean-Fabien Spitz affirms,
however, that such a method is itself contradictory, for ‘to say
that the rights of individuals depend on reason and on nature,
but to wish to protect them from discussion by all beings
endowed with reason is to destroy their rational
foundation’.

(Only a majority vote that would end in the

abolition of democracy can be declared anti-democratic, for
such a decision would contradict the end for which the vote is
only a means.)

‘One cannot strictly say anything about a politics of human

rights’, wrote Claude Lefort, ‘so long as one has not examined
if these rights have a really political significance’. Already in
1980, in a historical article, Marcel Gauchet had precisely
affirmed that ‘human rights are not politics’.

On these

terms, he defined therein ‘the greatest danger that the return to
human rights hides: falling into the rut and the impasse of an
idea of the individual against society, succumbing to the old
illusion that one can base oneself on the individual and start
from the individual, from his demands and his rights, to return
to society. As if one could disjoin the search for an individual
autonomy from the effort towards a social autonomy’.

‘Human rights’, he concluded, ‘are not politics insofar as they
do not expose us to the entirety of the society in which they
are introduced. They can become politics only on the
condition that one is able to recognise and one gives oneself
the means to surmount the alienating dynamism of the
individualism

that

they

diffuse

their

natural

counterpart’.

Twenty years later, Gauchet published a new article in

which he resumes and deepens the same subject.

He does

not limit himself to reaffirming that the ‘politics of human
rights’ leads to collective impotence. He shows there also that,
in wishing to assume such a politics, democracy undermines
‘the foundations on which it rests and the instruments that it
needs’.

The ideology of human rights, he explains, isolates the legal

element in societies to the detriment of politics and social

history: ‘We are witnesses to a revenge of rights and,
concomitantly, of an eclipse of politics and of social
history’.

[69]

This ideology argues, besides, in the name of

strictly individual rights. Now, ‘if there is a danger on the
horizon, it is that of the weakening of the collective before the
affirmation of individuals’.

[70]

Every democratic politics

must, in effect, recognise that the society which it governs
exceeds the simple sum of its constituent individuals, for fault
of which there could not be a general will. That is why ‘the
politics of human rights as a democratic politics runs aground
on the foundation. It runs aground in that it contributes to
produce a society whose global design eludes its members. It
can, indeed, enlarge the prerogatives of the individual in
society; the more it succeeds in that, the more the figure of the
whole weakens in its coherence, the less it is intelligible and
governable… The politics of human rights turns its back and
can only turn its back on the perspectives of an authentic
government of the collective by itself’.

[71]

Now, as Gauchet clarifies further elsewhere, democracy ‘is

and should be the government of the collectivity by itself in its
whole, and not only in its parts. It is and should be self-
government of the political community as such, without which
the prerogatives of right of the members and the constituents
of this community are finally revealed to be illusory. The
democracy of rights is a truncated democracy which loses
sight of the properly political dimension of democracy; it
forgets the fact of the political community, a fact at the level of
which is determined, in the final analysis, the existence of

democracy… The installation of the individual subject of right
in the plenitude of his prerogatives brings about the obscuring
of the collective political subject of democracy’.

[72]

‘There are two principal ways of conceiving of a

metapolitical humanity, a humanity having surmounted or
surpassed its political condition’, notes Pierre Manent. ‘This
can be a humanity organised according to the law, or this can
be a humanity living according to its morality’.

The

ideology of rights unites the one and the other, and that is why
it can only lack politics. But it lacks it also, and especially,
because it has as its subject an abstract man, posited as in the
‘state of nature’, that is to say, in the pre-social state. Hannah
Arendt had already noticed it: ‘Because philosophy and
theology are always concerned with man, because all their
pronouncements would be correct even if there were only one
or two men or only identical men, they have found no valid
philosophical answer to the question: what is politics?’

The notion of the individual on which the entire discourse of

human rights is based is, in fact, a remarkably impoverished
notion, since the only thing that qualifies an individual is that
he is an individual. (One can even ask oneself, in these
conditions, if it is reasonable to attribute anything at all to
him.) According to the doctrine of rights, it is by positing man
as an individual that one reaches his essence. In reality, a man
deprived of all his concrete characteristics is not at all a ‘man
in himself’. He is no longer anything, for he has undergone
the ‘loss of all human relationship’.

[75]

‘The mistake of

human rights with regard to historical and political reality’,

writes Myriam Revault d’Allonnes, ‘reveals, above all, the
impasses of a naturalistic conception that is inevitably turned
into its opposite. Testing it against the facts — that is to say,
against the loss of political qualities considered substantial —
what is discovered is not the permanent substratum of a
human nature, it is a pure indetermination deprived of
meaning’.

[76]

The first theoreticians of human rights were not wrong to

refer to human nature. But it is the notion that they formed of
it that was inconsistent. One knows today — one has known it
for a long time — that man is a social being, that the existence
of men did not precede their coexistence; in short, that society
is the perspective in which, from its origins, the human
presence in the world has been recorded. Just as there is no
spirit that is not incarnated, there is no individual that is not
situated in a determined socio-historical context. Membership
in humanity is thus never immediate, but mediated: one
belongs to it only through the intermediary of a particular
collectivity or a given culture. It is impossible for man to
define himself simply as an individual because he necessarily
lives in a community, where he is connected to values, norms,
shared meanings, and because the totality of these relations,
these practices — in a word, everything that constitutes his
living environment and surrounds his being, is not
superimposed but, on the contrary, constitutive of his self.
Man needs a community to live and to live well. But ‘the
famous saying of Aristotle, that man is a political animal, does
not mean only that man is naturally made to live in society; it

also means that man naturally asks to lead a political life, and
to

participate

actively

in the

life

of the political

community’.

[77]

‘We call those acts just’, writes Aristotle,

‘that tend to produce and preserve happiness and its
components for the political society.’

[78]

Now, it is simply impossible to think and to organise a

political body strictly in terms of individualism. ‘A society
therefore can no more be decomposed into individuals, than a
geometric surface can be resolved into lines, or a line into
points’, said Auguste Comte.

[79]

‘An individual is an isolated

knot’, wrote Raimundo Panikkar more recently, ‘a person is
the entire fabric that is outside this knot, a fragment of the total
fabric that constitutes the real… It is undeniable that, without
the knots, the fabric would come undone; but without the
fabric, the knots would not even exist’.

[80]

He deduces from

this that every political plan implies a certain form of holism.
In holism, society is anterior to the individual, as ‘the whole is
necessarily prior to the part’.

[81]

But the parts encompassed

by the whole are not reducible o this whole, and it is in this
that holism is distinguished from collectivism. The essential
difference is that, in collectivism, the social entities are
imposed absolutely on the individuals, whereas, in holism, it is
the capacities of the individuals that depend on their social
relations. This dependence is therefore not of a causal nature,
but constitutive and reciprocal. From this perspective, the
common good is neither the good proper to the whole nor the
simple sum of particular goods; it is a good common to the
parts and to the whole.

It is evident from this, if one admits that the defence and

promotion of rights require as a priority the affirmation of
politics, that, in attacking politics, in seeking unceasingly to
reduce its prerogatives, the theory of rights undermines the
very foundations of its implementation. A man can have rights
only in a political context, in a political mode of life shared in
common, because every right depends on the socio-historical
conditions in which it is affirmed.

[82]

Just as formal rights are

rights without weight (the right to work is not enough to find
a job, and the right to education does not mean very much
when the public powers do not have the financial means to
ensure free instruction), the individual in himself cannot be a
true subject of right. The rights can only be predicates of
citizenship. ‘If man attains humanity by becoming a citizen’,
observes Myriam Revault d’Allonnes, ‘that is to say, by
acquiring a political status and if, reciprocally, he loses his
properly human qualities in losing this same status, human
rights imply an exercise that is rooted in citizenship’.

[83]

Men, inversely, can acquire rights only in the midst of a
specific polity, in a life context that concretely guarantees the
power of benefiting from it. Which comes back to saying that,
in the final analysis, the rights affirm and express the
difference between men, never their identity.

[84]

But one should go farther and question the very occasion of

continuing to speak using the language of rights. As the
theory of human rights is intrinsically associated with the
liberal ideology, every attempt to give it a non-liberal
reformulation is very likely to fail. It would be better to realise

that the rights that one commonly invokes are not so much
rights as duties of the governing, and, as a counterpart,
capacities and freedoms that it is legitimate for the governed to
demand if they are refused them.

It is thus not a question, of course, of abandoning the

defence of freedoms to the ideology of human rights, and
much less of criticising the latter with a view to legitimising
despotism. It is a question, on the contrary, of showing that
the necessary fight against all forms of tyranny and
oppression is a fundamentally political question which, as
such, should be resolved politically. It is a question, in other
words, of abandoning the legal sphere and the field of moral
philosophy to affirm that the power of the political authority
must be limited, not because the individuals enjoy, by nature,
unlimited rights, but because a polity where despotism reigns
is a bad political society; that the legitimacy of the resistance to
oppression does not derive from an innate right, but from the
necessity for the political authority to respect the freedom of
the members of society; in short, that men should be free not
because they ‘have the right to that’, but because a society
where the fundamental freedoms are respected is politically
better than — and, moreover, morally preferable to — a
society where they are not.

That implies returning to citizenship conceived as an active

participation in public life, and not as a notion which can be
manipulated with a view to obtaining rights, the value of a
principle. ‘The acceptance of the minimal requirements of a
democratic political order — the strict equality of rights and

duties of each person’, writes Jean-François Kervégan in this
context, ‘forces one to renounce all metaphysical,
anthropological or even moral foundations of human rights,
and especially of those that are fundamental, in favour of a
strictly political foundation, that is to say, supported on the
sole principle of the civic (and not natural, for nothing is less
egalitarian

than

‘nature’)

equality

the

citizen-

individuals’.

[85]

At the same time, that leads at the same time to rehabilitating

the notion of membership in a political community, without
which freedom, equality and justice are only inoperative
abstractions. Far from enclosing the individual or threatening
his being, this membership gives him, on the contrary, ‘the
possibility of being a significant individual’, as Revault
d’Allonnes writes, who adds, ‘To found human rights
“politically”, one must think of politics and citizenship, not
only in the secondary perspective of a guarantee of subjective
natural rights, but also as the original condition which founds
the effective exercise of the communal life. But — and the two
things are evidently related — one must also review the
question of the individualist foundation of society and think of
individual uniqueness in terms of uniqueness of membership
or even of plural uniqueness. The latter is not based on the
ground of an individual foundation but on that of a relation to
the common world. For, if the “right to have rights” is
inseparable from membership in an organised political
community — which, from this fact, cannot be reduced to an
association of individuals — the irreplaceable uniqueness of a

human being is not related to his self-sufficient foundation but
t o the memberships which make his individuation
possible’.

[86]

Finally, one must abandon the idea that there is necessarily a

contradiction between individual freedom and social life, and
simultaneously redefine freedom in a sense that is in accord
with what Benjamin Constant

[87]

called ‘the freedom of the

Ancients’,

[88]

and Isaiah Berlin ‘positive freedom’,

[89]

which is indissociable from an active participation in public
life, whereas the freedom of the Moderns, or negative
freedom, consists in a series of rights allowing one to protect
oneself from this obligation.

Freedom is not only a personal power. It needs a social field

to exercise itself. That is why one could not be satisfied with
the definition figuring in Article 4 of the Declaration of Rights
of 1789: ‘Freedom consists in being able to do anything
which does not harm others’. On the one hand, individual
autonomy and the free expression of capacities and merits are
not subjective rights but correspond, on the contrary, to an
imperious political and social necessity. (Public education, for
example, is not at all the result of some ‘right to education’
without which it would be free, but optional. What makes it
obligatory is the recognition that instruction constitutes a
social good.) On the other hand, individual freedom is never
accomplished in a society that is not free, which comes back to
saying that there is no private freedom without public
freedom. ‘The aim of the ancients was the sharing of social
power among the citizens of the same fatherland’, writes

Benjamin Constant.

[90]

That means that freedom is also, first,

a political problem — and not a problem of ‘rights’. Such a
freedom precedes and conditions justice, instead of being a
result of it.

Let us add that one of the best means of defending freedoms

consists in having recourse to the principle of subsidiarity,

[91]

which delegates to the superior authority only those tasks that
cannot be accomplished at the lower levels or the local level,
thus permitting one to return to a more rigorous conception of
right: to establish (or re-establish) right is not to attribute
authority to individuals the ‘right’ to obtain something, but to
give them what is due to them, or to return to them,
individually and collectively, in a concrete manner, that which
has been unjustly taken away from them by a third party or by
the state.

The historians often see in the English Magna Carta of 15
June 1215

[92]

the first text that ‘constitutionally’ enunciated

human rights. This interpretation is anachronistic. Just like the
Spanish Magna Carta of King Alphonso de Leon

[93]

which

had preceded it in 1188, the Magna Carta is a document that is
limited to politically establishing political freedoms. Carl
Schmitt emphasises that it is ‘considered historically, is only
one of many examples of medieval agreements between prince
and feudal lords’.

[94]

It is, in fact, a question, in the form of a

royal concession, of a pact of public law which guarantees to
the feudal aristocracy a certain number of freedoms and

protects it against eventual abuses of royal power. It is the
same with the Habeas Corpus Act of 1679 (a guarantee
against arbitrary arrests)

[95]

and of the Bill of Rights of

1689,

[96]

about which Schmitt writes, ‘They are, in fact,

contractual or statutory regulations of the rights of English
barons or citizens, which in the course of a gradual
development certainly assumed the character of modern
principles, but they do not correspond to the original meaning
of basic rights.’

[97]

Freedom, in any case, has been a European concept since its

origin. Ancient Greece was the first to proclaim its benefits.
But it is especially in the north of Europe that its value seems
to have been celebrated most constantly. Tacitus,

[98]

already,

said that he was surprised to learn that, among the Germans,
the kings were elected and the power to designate them always
belonged to assemblies. The Germans, he adds, do not know
of obligatory tax and only know voluntary contributions.
What the Roman historian says of the status of women shows
equally to what degree the freedom of the person was
recognised in the countries of the North since the most ancient
times.

In France, where the monarchy ceased to be elective only

after Louis IX,

[99]

this ideal of freedom was kept alive

throughout the Middle Ages. Describing the feudal regime,
Fustel de Coulanges

[100]

writes, ‘At the top of the hierarchy,

the king was surrounded by his great vassals. Each of these
vassals was himself surrounded by his own feudatories and he
could not pronounce the least judgment without them... The

king could neither make a new law, nor modify the existing
laws, nor raise a new tax without the consent of the country...
If one looks at the institutions of this regime from close
quarters, and if one observes their meaning and significance,
one will see that they were all directed against despotism.
However great the diversity that seems to reign in this regime,
there is, however, one thing that unites them: this thing is
obsession with absolute power. I do not think that any regime
better succeeded than that in rendering arbitrary rule
impossible... Feudalism was an association of free men’.

[101]

The end of the feudal regime marked the beginning of the

disintegration of this system under the influence of Roman
authoritarianism and the deadly blows of the centralised state.
Little by little, hereditary royalty implemented a juridical-
administrative centralisation at the expense of intermediary
bodies and regional assemblies. While the communal
revolution sanctioned the power of the nascent bourgeoisie,
the regional parliaments ceased to be equal assemblies and
became meetings of royal officers. Having become absolute,
the monarchy supported itself upon the bourgeoisie to
liquidate the last resistances of the nobility.

But there were also some theoreticians, even in France, who

denounced

centralisation,

juridical-administrative

rationalisation and royal absolutism, the mere imitation of
divine absolutism. This demand is sometimes made in the
name of ‘the fundamental laws of the kingdom’, sometimes
by invoking the ancient Celtic or Germanic freedoms. The
system

freedom

was

‘found

the

woods’,

Montesquieu

[102]

would say, in order to recall the aristocratic

and Germanic origin of the idea of freedom. The same
argument was maintained from the end of the Seventeenth
century by the entire ‘Germanist’ movement (Henry de
Boulainvilliers, Le Laboureur, Louis Adrien Le Page),

[103]

who then strongly opposed the ‘Romanist’ movement (the
Abbé Dubos, the Marquis d’Argentons, Jacob Nicolas
Moreau).

[104]

Following the example of Althusius and the

Monarchomachs,

[105]

great adversaries of the theories of

Jean Bodin,

[106]

its partisans repeated incessantly that, in the

past, the kings never had absolute power. Some, like
Boulainvilliers,

[107]

defended the doctrine of popular

sovereignty and the thesis of an original nation where
property was shared. This doctrine would be repeated later by
Augustin Thierry.

[108]

Another particularly interesting movement is classical

republicanism (or civic humanism),

[109]

whose essential

principles have been recalled in the contemporary age by
authors like John G. A. Pocock, Quentin Skinner and, more
recently, Philip Pettit. This school of thought is principally
related to the Roman Republican tradition (Sallust

[110]

and

Livy)

[111]

and more distantly to Greece (Polybius

[112]

and

Aristotle), but also to Machiavelli, to the Florentine and
Venetian humanists, to the English Republicans, and thus to
Montesquieu, Rousseau and Jefferson.

[113]

In England, the neo-Roman theory of civil freedom

appeared in the Seventeenth century. Its representatives,
Henry Parker, John Milton, Algernon Sidney and, above all,

James Harrington, reveal a strictly political conception of
freedom, and defend the thesis of a parliamentary and popular
sovereignty, which resulted in their being violently attacked
by Thomas Hobbes. The notion of civil liberty is for them tied
to the classical ideal of the civitas libera or ‘free state’,
reanimated in the Italian Renaissance by the defenders of
republican libertà, in particular Machiavelli in his Discourses
on Livy (1514-1519). When they speak of ‘natural rights and
freedoms’, it is thus never with regard to the individual but to
what Milton and Harrington call ‘common liberty’, ‘free
government’ or ‘commonwealth’.

Celebrating the ‘civic

virtues’, the Neo-Romans at the same time rehabilitate politics
t o the degree where public institutions can contribute to the
exercise

of these virtues (whose first cause resides,

nevertheless, in the social customs, traditions and practices).
Their principal thesis is that man can be truly free only in a
free state. They therefore reject the thesis according to which
coercive force is the only one that would threaten individual
freedoms, and emphasise that living collectively in a state of
dependence already constitutes a source and a form of
constraint. ‘A free state’, writes Quentin Skinner, ‘is a
community in which the actions of the political body are
determined by the will of the totality of its members’.

[114]

such a state, the laws must be applied with the consent of all
the members of the political body, which implies their active
participation in public life at the same time as the rejection of
absolute monarchy as tyranny.

From such a perspective, far from freedom being called

upon to manifest itself in a privileged manner in a private
sphere always threatened by political authority, being free
means, first, to be able to take part in decisions whose locus is
the social and political life, avoiding constraint and coercion,
and thus contributing to the maintenance of collective
freedoms. Freedom then becomes a form of social
relationship: I cannot be free without the other members of my
community being so equally. That means that there is only
shared freedom, and that the rules to which the members of a
political community conform constitute their common
possession. The law, besides, ceases to be the enemy of
freedom, for the intervention of the public powers can help in
its realisation. The collectivity governs itself, not in terms of
rights, but thanks to the participation of all.

‘The first distinctive trait of a republican political

philosophy’, writes Jean-Fabien Spitz, ‘is the affirmation
according to which the rights that the citizens possess are not
fixed by a philosophical reason that scrutinises nature, but by
a common deliberation in which one tries to eliminate
partialities by confronting them with nature and to attain
norms that everybody may find legitimate... The rule is no
longer, further, the expression of the cumulative interests of
the greatest number, but of a shared conviction’.

[115]

The

republic is thus composed ‘of citizens who address not only
the question of the institutional dispositions most favourable
to the advancement of their own interests, but also the
question of the norms of a legitimate and morally acceptable
collective existence’.

[116]

Jean-Fabien Spitz further clarifies, ‘The republicans ...

refuse to conceive rights solely as instruments necessary for
the accomplishment of a collection of essential duties, founded
on nature and imposed from outside on every human will. On
the contrary, they wish to conceive rights as the product of a
democratic deliberation bearing on the kind of life we wish to
lead collectively, and on the common principles around which
the members of a republic wish to unite... The republicans
thus consider that there is something profoundly erroneous in
the idea of rights that are not social, anterior to all properly
political deliberation: the rights are not qualities attached to the
individuals outside all political society, but qualities which can
only belong to citizens; these are not natural “trumps” with
which the individuals could cut the decisions of the
collectivities of which they are members, but principles of
existence around which the societies are built’.

[117]

The theory of civic republicanism which has been

progressively dethroned in the Anglo-Saxon countries since
the Eighteenth century by liberalism has sometimes
approached the theses of the communitarian school, from
which, however, it deviates on certain points (notably in Philip
Pettit).

Extending in many respects the Hegelian critique of Kant,

the communitarian critique of the ideology of rights is rooted
in an essential conception of the good. The communitarians
subordinate that which is right to the respect for a certain
number of intrinsic goods, constitutive of the good life, a
procedure antithetical to the liberal conception of rights.

Affirming that the discussion of human rights ignores not
only cultural diversity, but also the social basis of personal
identity, they show that the rights belonging to a subject
disconnected from every communitarian relationship, or in
any case, capable of revoking the commitments that result
from it, are necessarily empty of meaning, since it is, on the
contrary, the fact of belonging to a collectivity that constitutes
the field of meaning from which it is possible to have rights: if
there is no common social good, the rights accorded to the
individuals are only an illusion.

[118]

The majority of the communitarians nevertheless recognise

individual rights, but contest the formulation which the
liberals give to them. Among them, the critique of the liberal
conception of rights generally takes two paths. The first
consists in showing that, in according primacy to individual
rights, liberalism neglects the communitarian dimension of
human life which is indispensable to the constitution of the
self as well as to the definition of a good life. The second
resides in the affirmation that the justifications advanced to
defend this prioritisation of individual rights rests on
erroneous presuppositions concerning human nature. The
communitarians also contest the autonomous character of the
theory of rights, and affirm that it should at least be supported
on a more general theory of moral action or of virtue, the
latter having as its principal object to question oneself on what
it is good to be, and not on what it is right to do.

[119]

If one

refers to Ancient thought or to the Medieval tradition, to civic
republicanism or to the theoretical works of the

communitarian school, there is no shortage of sources, there
is, in any case, no shortage of sources that allow us to found
the necessary freedom without having recourse to liberal
ideology, and to defend it in a more coherent and assured
manner than the discussion of human rights does. It is beyond
this discussion that, to repeat the fine formula of Pierre
Chaunu,

[120]

‘the capacity to say us authentically, thus to

resist the absolute I’ is affirmed.

Augustin Cochin (1876-1916) was a historian who sought to analyse

the French Revolution from a sociological perspective. He was killed
in action in the First World War.-Ed.

Edmund Burke (1729-1797) was an Irish politician and philosopher

who sat in the House of Commons as a member of the Whig party.
He was opposed to democracy and the French Revolution, although
he did believe in the importance of representative government and
supported the cause of the American Revolution. He was also
involved for many years in addressing injustices perpetrated by the
British East India Company in India.-Ed.

This is a famous quote from André Malraux’s novel The Conquerors

(Chicago: University of Chicago Press, 1992), p. 155. The full quote
reads, ‘I’ve also learned that a life isn’t worth anything, but nothing
is worth a life.’-Ed.

Alexis De Tocqueville (1805-1859) was a French political thinker

best known for his work, Democracy in America, which was based on
his experiences while travelling in the U.S. Although De Tocqueville
was a democrat who opposed the monarchy of his day, he also
opposed the socialist radicals. In his study of the U.S., he praised
America’s democratic system, but disliked Americans’ obsession
with money and their contempt for elites, since even though the latter

is what enabled them to do away with the old colonial aristocracy, it
also caused them to disregard the most intelligent members of their
society, coining the term ‘tyranny of the majority’ to describe it.-Ed.

Cf. Democracy in America (New York: Library of America, 2004),

vol. 4, chapter 6, pp. 816-821.

The Origins of Totalitarianism (Orlando: Harcourt Brace

Jovanovich, 1976), p. 299. In this work, Hannah Arendt ties her
critique of the theory of human rights to a denunciation of
totalitarianism, itself present as social atomisation and forced
equalisation of all individuals.

Droit, communauté et humanité (Paris: Cerf, 2000), pp. 92-93. The

abstract character of the formula is especially marked in French
(droits de l’homme), less in German, which speaks of ‘rights of men’
(Menschenrechte), and still less in English, Spanish or Italian, which
use an adjective instead of a noun (human rights, derechos humanos,
diritti umani).

La démocratie contre elle-même (Paris: Gallimard-Tel, 2002), pp.

20-21.

Démocratie: le risque du marché (Paris: Desclée de Brouwer, 2002),

p. 176.

Sandel first coined this term in his article, ‘The Political Theory of

the Procedural Republic’, Revue de metaphysique et de morale 93,
January/March 1988, p. 61, and in his book Liberalism and the Limits
of Justice (Cambridge: Cambridge University Press, 1982).-Ed.

On the inflation of rights, cf. F. Ost and M. Van de Kerchove, Le

système juridique entre ordre et désordre (Paris: PUF, 1988); and
Stamatios Tzitzis, ‘Droits de l’homme et droit humanitaire’, in Henri
Pallard and Stamatios Tzitzis (eds.), Droits fondamentaux et

spécificités culturelles (Paris: L’Harmattan, 1997), pp. 41-62. (Fred
Siegel, a senior fellow at the Progressive Policy Institute and a
former advisor to Mayor Rudolph Giuliani, discusses dependent
individualism in The Future Once Happened Here: New York, DC,
LA, and the Fate of America’s Big Cities [New York: Free Press,
1997]).

Les principes philosophiques du droit politique moderne (Paris:

PUF, 1997), p. 274.

Chantal Mouffe, The Return of the Political (London: Verso, 1993),

p. 140.

Art. cit., p. 502.

The Thirty Years’ War ended with the Peace of Westphalia in

1648, in which the nations of Europe recognised each others’
territorial integrity. Some historians consider it to have been the first
step in the development of the modern-day system of international
relations.-Ed.

It was nevertheless prepared by the slow evolution of international

law which, at least since the Treaty of Versailles (1919), has moved
increasingly farther away from the ancient jus publicum europaeum.
Already in 1917, the American President Woodrow Wilson had
introduced into international law a discriminatory conception of war
which makes the ‘just war’ the equivalent of a crusade. On this vast
subject, cf. Carl Schmitt, The Nomos of the Earth in the International
Law of the Jus Publicum Europaeum (New York: Telos Press, 2003).

Jus ad bellum, meaning ‘right to wage war’ in Latin, are the

conditions under which it is considered acceptable under
international law for a nation to declare war on another. Jus in bello,
or ‘laws of war’, are the laws which apply in combat once a war is in
progress, such as the Geneva Convention.-Ed.

Cf. Tzvetan Todorov, ‘Les illusions d’une justice universelle’, in

Le Monde des débats, May 2001, p. 27. The most revealing is that,
when the great powers judge that they, too, might one day need to
submit to the general law, they abruptly retrace their steps. This is
how the United States has constantly promoted the principle of
human rights beyond its borders, even while contesting that the same
standards might apply to them. They demanded the appearance of the
Serbian President Milošević before the International Criminal
Tribunal, even while making it known that, for their part, they do not
recognise its jurisdiction. Cf. Stanko Cerovic, ‘Le TPI, instrument de
l’empire américain’, in Le Monde des débats, May 2001, p. 26. As
regards the right of humanitarian interference, David B. Rivkin, Jr.
and Lee A. Casey wrote recently that it ‘may prove to be one of the
most potent weapons ever deployed against the United States’, for
‘has the potential to undermine American leadership in the post-Cold
War global system’ (‘The Rocky Shoals of International Law’, in The
National Interest, New York, Winter 2000-2001, pp. 36-38). As an
alternative, the authors express the wish that the United States
‘actively work to shape international law in ways that both support
[its] national interests and that are consistent with [its] philosophical
foundations’ (ibid., p. 41).

Pierre-Joseph Proudhon (1809-1865) was a French politician and

philosopher who opposed capitalism and did not believe in state
ownership of property, instead believing that property should belong
to workers’ groups.-Ed.

The Concept of the Political (Chicago: University of Chicago

Press, 2007), p. 54.-Ed.

Ibid., p. 54.

Max Weber (1864-1920) was a German who is considered one of

the founders of sociology. His principal work is The Protestant Ethic

and the Spirit of Capitalism. Weber discusses the idea of the paradox
of consequences in Economy and Society.-Ed.

Contre l’Etat, la politique (Paris: La Dispute, 1999), p. 104.

The Reign of Terror was a period between 1793 and 1794 in France

when the revolutionary National Convention, led by Robespierre,
executed perceived enemies of the French Revolution, including not
just members of the aristocracy, the priesthood and the old regime
but even those who had supported the revolution but who held views
in opposition to the Convention. Thousands of people were sentenced
to death during this period.-Ed.

Politique et impolitique (Paris: Sirey, 1987), p. 198.

Bernard Kouchner (b. 1939) is a French socialist politician with a

history of radical activism who served as French Foreign Minister
from 2007 until 2010. In early 2003, when the U.S.-led war against
Iraq was imminent, Kouchner declared himself to be in favour of
removing Saddam Hussein from power, even though he believed that
this should be accomplished by the United Nations and not by the
United States acting unilaterally.-Ed.

Le Monde, 17 September 2002.

Constitutional Theory (Durham: Duke University Press, 2008), p.

203. The culture of rights, summarises Charles Taylor, is a triply
individualist culture: ‘[I]t prizes autonomy; it gives an important
place to self-exploration, in particular of feeling; and its visions of
the good life generally involve personal commitment. As a
consequence, in its political language, it formulates the immunities
due people in terms of subjective rights. Because of its egalitarian
bent, it conceives these rights as universal’ (Sources of the Self: The
Making of the Modern Identity [Cambridge: Cambridge University
Press, 1989], pp. 305).

The Le Chapelier Law and the Allarde decree were passed by the

revolutionary National Assembly in 1791, following the French
Revolution. The laws banned guilds as well as forbade strikes and
state intervention in the economy, proclaiming free enterprise to be
the sole arbiter of French labour.-Ed.

‘Questions de politique’, in Michel Garcin (ed.), Droit, nature,

histoire: Michel Villey, philosophe du droit (Aix-en-Provence:
Presses universitaires d’Aix-Marseille, 1985), p. 170.

Pierre Manent, Naissance de la politique modern (Paris: Payot,

1977), p. 11.

La religion dans la démocratie: Parcours de la laïcité (Paris:

Gallimard, 1998), p. 81.

Theory of the Constitution, p. 197-198.

Ibid., p. 198.-Ed.

Cf. Marcel Gauchet, La révolution des droits de l’homme (Paris:

Gallimard, 1988); and Stéphane Rials (ed.), La Déclaration des
droits de l’homme et du citoyen (Paris: Hachette, 1989).

Jean Jacques Rousseau: His Educational Theories Selected from

Émile, Julie and Other Writings (Hauppauge: Barron’s Educational
Series, 1964), p. 9.

Preface to Ladan Boroumand, La guerre des principes: Les

assemblées révolutionnaires face aux droits de l’homme et à la
souveraineté de la nation, mai 1789-juillet 1794 (Paris: Éditions de
l’École des hautes études en sciences sociales, 1999), p. 8. Cf. also
Elisabeth Guibert-Sledziewski, ‘L’invention de l’individu dans le
droit révolutionnaire’, in La Révolution et l’ordre juridique privé:
Rationalité ou scandale? Actes du colloque d’Orléans (Paris: CNRS-

Université d’Orléans and PUF, 1988), pp. 141-149.

‘On the Jewish Question’, in Writings of the Young Marx on

Philosophy and Society (Indianapolis: Hackett Publishing, 1997), pp.
236-237. From ‘On the Jewish Question’ (1843) to the writings of his
maturity, Marx will never return to this judgment. Thereafter he will
denounce not only human rights as formal rights, but also as rights in
general, letting it be understood in this way that it is not in terms of
right that one should think of politics. Cf. Bertrand Binoche,
Critiques des droits de l’homme (Paris: PUF, 1989), pp. 97-112; and
Georg Lohmann, ‘La critica fatale di Marx ai diritti umani’, in Studi
Perugini, January-June 1998, pp. 187-199.

Ibid., pp. 237, 240.

‘Droits de l’homme et politique’, in L’invention démocratique

(Paris: Fayard, 1981), p. 66.

L’Etat séducteur: Les révolutions médiologiques au pouvoir (Paris:

Gallimard, 1993), p. 161.

Op. cit., p. 191. Freund concludes from this that one cannot even

say of a declaration of human rights that it belongs to natural right
inasmuch as even these rights can be effective only from the moment
when they have been proclaimed: ‘We are in the presence of a right
whose nature remains indeterminable’ (ibid., p. 192).

‘Les tâches de la philosophie politique’, in La Revue du MAUSS,

first quarter 2002, p. 292.

D. D. Raphael, Problems of Political Philosophy (London:

Macmillan, 1970).

Jean-François Kervégan, ‘Démocratie et droits de l’homme’, in

Gérard Duprat (ed.), L’ignorance du peuple: Essai sur la démocratie

(Paris: PUF, 1998), p. 48.

Ibid.

‘Lofty ideals’, as Maurice Cranston writes, in Human Rights Today

(London: Ampersand, 1962).

Friedrich Hayek (1899-1992) was an economist who was crucial to

the development of the Austrian school of economics. He opposed
collectivism and state control of the economy in favour of classical
liberalism, holding that only the free market and limited government
were the only effective method of organising societies.-Ed.

The Road to Serfdom: Texts and Documents (New York: Routledge,

2007), p. 117.

Essais sur le politique (Paris: Seuil, 1986).

‘The more justice there is, the less freedom there is’, writes Max

Horkheimer. ‘If one wishes to move towards equity, one should
prohibit many things to men... But the more freedom there is, the
more one who deploys its powers with superior skill than others will
finally be capable of dominating them, and thus there will be less
justice’ (Théorie critique [Paris: Payot, 1978], p. 358).

Art. cit., p. 42.

Le dépérissement de la politique: Généalogie d’un lieu commun

(Paris: Flammarion-Champs, 2002), p. 284.

Constitutional Theory, p. 207.

Op. cit., p. 284.

Philosophie des droits de l’homme (Brussels: Éditions de

l’Université de Bruxelles, 1987), p. 15.

Art. cit., p. 43.

Cf. Robert Bork, ‘The Limits of “International Law”’, in The

National Interest, Winter 1989-1990, p. 10. (‘There can be no
authentic rule of law among nations until nations have a common
political morality or are under a common sovereignty. A glance at
the real world suggests we have a while to wait.’-Ed.)

The Trilateral Commission is a think tank founded by David

Rockefeller to facilitate economic cooperation between the United
States, western Europe and Japan, although the list of nations which
participate in it has grown since then. In 1975, the Commission
issued a report entitled The Crisis of Democracy, which
controversially criticised the 1960s as a period of an ‘excess of
democracy’.-Ed.

Samuel Huntington (1927-2008) was an American political

scientist who became infamous for serving as an advisor to
authoritarian regimes, such as South Africa in the 1980s. He
famously postulated that nations in the process of transitioning into
modernity must be cautious about not introducing democracy too
quickly into their societies, and that repressive measures can actually
be necessary and beneficial in the short term. More recently, he
became well-known for his book The Clash of Civilizations, in which
he theorized that the changing world order following the collapse of
Communism would be defined by conflicts between cultural blocs,
such as the West and the Islamic world.-Ed.

Zbigniew Brzeziński (b. 1928) was the National Security Advisor

to the Carter administration from 1977 to 1981. Since then he has
gained a reputation as a highly respected political analyst. In the past
he has advocated an active role by economically advanced nations to
counter instability brought about by economic inequalities in the
Third World.-Ed.

Le droit des peuples (Paris: PUF, 1986), p. 52.

On the compatibility of the doctrinal foundations of liberalism and

democracy, cf. Carl Schmitt, Constitutional Theory, op. cit.
‘Democracy and liberalism are incompatible’, writes Paul Piccone;
‘liberal values are legitimate only if they are not imposed from above
by a central government pretending to know better’ (‘Ten Counter-
Theses on the New Class Ideology: Yet Another Reply to Rick
Johnstone’, in Telos 119, Spring 2001, p. 153).

‘Républicanisme et droits de l’homme’, in Le Débat, November-

December 1997, p. 65.

‘Les droits de l’homme ne sont pas une politique’, in Le Débat,

Paris, July/August 1980. The text was republished in La démocratie
contre elle-même, pp. 1-26.

Ibid., pp. 17-18.

Ibid., p. 26.

‘Quand les droits de l’homme deviennent une politique’, in Le

Débat, May/August 2000. The text was republished in La démocratie
contre elle-même, pp. 326-385.

Ibid., p. 335.

Ibid., p. 378.

Ibid., p. 381.

‘Les tâches de la philosophie politique’, art. cit.

Art. cit., p. 501.